Constitutional debates. South Dakota, 1885, 1889

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UNIVERSITY OF CALIFORNIA
v AT LOS ANGELES

SOUTH

DAKOTA CONSTITUTIONAL
CONVENTION

"HELD AT SIOUX FALLS, JULY, 1889

VOL, 2

HON. A. J. EDGERTON, President
REV. F. A. BURDICK, Chief Clerfc
DR. A. W. HYDE, Engrossing Clerk

PUBLISHED UNDER THE EDITORIAL SUPERVISION OF DOANE ROBINSON
STATE LIBRARIAN

Huron, S. Dak.

STACK ANNEX

A'1/

Constitutional Convention of 1889

The Convention of 1889, which convened at Sioux Falls on
July 4. was the third Constitutional Convention held in South Da-
kota. Volume One, of this series, embraces the debates of the
second Constitutional Convention of 1885. The debates of the
Convention of 1883 were not preserved. The membership of the
Convention of 1889 was as follows:

FIRST DISTRICT Sanford Parker, of Fail River; Valentine T.
McGillicuddy , of Penr.ington; Chauncey L. Wood, of Pennington.

SECOND DISTRICT — Dighton Corson, of Lawrence; William
S. O'Brien, of Lawrence; Charles M. Thomas, of Lawrence. .

THIRD DISTRICT— S. A. Wheeler of Butte; Thomas W. Thomp-
son, of Lawrence ; John Scollard, of Lawrence.

FOURTH DISTRICT — William McCustick, of Roberts; Henry
Xc-ill, of Grant; C. R. Wescott, of Deuel.

FIFTH DISTRICT — William Cook, of Marshall; W. G. Dickinson,
of Day ; George II. Culver, Day ;

SIXTH DISTRICT- Martin R. Henninger, of Brown; Lyman T.
Boucher, of McPherson ; Hurry T. Craig, of Campbell.

SKVKXTH DISTRICT S. F. Brott, of Brown ; William Stoddard,
of Brown; M. P. Stroupe, of Brown.

ICic.irni DISTRICT 11. A. Humphrey, of Faulk ; J. G. Davies.
of Kdmunds; Peter Couchman, of Wahvorth.

XIXTH DISTRICT J. F. Wood. <,f Spink ; Thomas Sterling, of
Spink;T. W. P. Lee, of Spmk.

TKXTII DISTRICT John F. Whitlock. of Potter; David llali.
of Sully ;Chas. li. Price, of Hyde.

FLKVKXTH DISTRICT C. G. Hartley, of Hand: S. F. Huntlev,
of Jerauld; K. C. Anders-, n, of Buffalo.

, TWKI.I--TII DISTRICT A. G. Kellam. of Bruie ; J. V. Willis, of
Aurora; H. I;. Fellows, of Aurora.

4592

THIRTEENTH DISTRICT — C. H. Van Tassel, of Sanborn ; L. H.
Hole, of Beadle; George C. Cooper, of Beadle.

FOURTEENTH DISTRICT— Carl G. Sherwood, of Clark; W. H.
Matsun, of Kingsbury ; S. D. Jeffries, of Clark.

FIFTEENTH DISTRICT — E. E. Clough, of Codington; S. VS. Peck,
of Hamlin; S. B. Van Buskirk, of Codington.

SIXTEENTH DISTRICT — 1. Atkinson, of Brookings; I. R. Spooner,
of Kingsbury; Joshua Downing, of Brookings.

SEVENTEENTH DISTRICT — K. W. Eddy, of Miner; F. G. Young,
of Lake; R.. F. Lyons, of Lake.

EIGHTEENTH DISTRICT — Andrew J. Berdahl, of Minnehaha
II. M. Williamson, of Moody; C. C. Gifford, of Minnehaha.

NINETEENTH DISTRICT— William VanEps, of Minnehaha; Clark
G. Coats, of Minnehaha; E. W. Caldwell, of Minnehaha.

TWENTIETH DISTRICT — William Elliott, of Turner; A. B. Mc-
Farland, of Lincoln; J. A. Fowles, of Lincoln.

TWENTY-FIRST DISTRICT — John L. Lolley, of Clay ; A. O. Rings-
rud, of Union ; J. Kimball, of Union.

TWENTY-SECOND DISTRICT— Edward G. Edgerton, of Yankton ;
Christian Buechler, of Hutchinson; C. J. B. Harris, of Yankton.

TWENTY-THIRD DISTRICT — William T. Williams, of Bon Homme
Robert A. Smith, of Charles Mix ; Joseph Zitka, of BonHomme.

• TWENTY-FOURTH Dis RICT — A. J. Edgerton, of Davison;
Charles A. Houlton, of Douglas; S. A. Ramsey, of Sanborn.

TWENTY-FIFTH DISTRICT — W. H. Goddard, of McCook; W.
II. Murphy , of Hanson ;T. F. Diefendorf, of McCook.

SOUTH DAKOTA CONSTITUTIONAL CONVENTION.

Sioux Falls, D. T., July 4th, A. D., 1889.

At the hour of twelve o'clock, meridian, on this 4th day of
July, 1889, the day and hour appointed by law, the members-elect
of the Constitutional Convention of South Dakota, assembled in
Germania Hall and were called to order by Hon. Dighton Corson,
of Lawrence, one of their number.

Mr. Corson, of Lawrence: Gentlemen of the Constitutional
Convention of South Dakota: The Act of Congress providing for
this Convention has made no provision for any particular officer
to call the Convention to order. At the request of several gentle-
men, I now call you to order.

We will first invoke the blessing of Almighty God. The
Convention will rise.

Prayer by Rev. L. N. Stratton, of Sioux Falls:

Great and Eternal Father, Thou King of Kings and Lord of
Lords, before whom angles bow and to Whom nations must submit,
we pray Thee to let Thy blessing rest upon this gathering this day.
Grant, we pray, O God, to assist the members of this Convention
in all of their deliberations, in all of their plans, and business, and
duties and arrangements, and help them to realize that Thy mercy
is upon them. We thank Thee that Thou hast sent them here.
We thank Thee that they have at last reached this stage in their
history as citizens of a new state. Grant, O God, that Thy blessing
may rest richly down upon them. Give them wisdom, knowledge
and understanding, and lead them to know that the God of this
nation is their God, and that they must trust in Him and rely upon
Him in all their duties and plans, Bless the Presiding Officer of
this Convention, whomsoever he may, be. Bless all the officers in
any degree or grade below him; and grant that in all of the business
arrangements and duties of this gathering there may be a realization
of the presence of God.

\Ve ask it in the name of Jesus, our King,
AMEN.

SOUTH DAKOTA DEBATES 1889

Mr. Corson, of Lawrence: I will ask Mr. Caldwell to read the
Proclamation of the Governor.

Mr. Caldwell, of Minnehaha: I will say that there are some
typographical errors in the proclamation as printed, and that I
will correct them so far as I may know them to be such. In the
Tenth District there appears a name which is entirely wrong — the
name "Albert Hall". The certificate of election for the third
member from that district has been issued to Charles H. Price.

Mr. Corson, of Lawrence: Perhaps you will read it as pro-
claimed, as it will have to be corrected by the Convention.

Mr. Caldwell, of Minnehaha: All right.

Mr. Caldwell here proceeded to read the Proclamation of
the Governor,' entitled,

PROCLAMATION

—of the—
Election of Delegates to the Constitutional Conventions

— of the —
States of North Dakota and South Dakota.

But only such names of delegates were read as were by the
Proclamation declared elected delegates to the Constitutional
Convention of South Dakota.

Mr. Corson, of Lawrence: For the purpose of knowing how
many members are present in this Convention I will direct now
the roll to be called, and each member as his name is called will
announce the fact, if he is present.

(The roll as contained in said proclamation, after being cor-
rected, was called by Mr. Caldwell.)

Mr. Corson, of Lawrence: There are five absentees: Charles
M. Thomas, J. G. Davies, R. C. Anderson, E. E. Clough, and Clark
G. Coates, are absent. All the members elected to this Conven-
tion being present, excepting five, and there being more than a
quorum, the Convention can proceed to the election of the presi-
dent of the Convention. Nominations for President are now7 in
order.

Mr. Neill, of Grant: I think the proper order in this Conven-
tion now is to proceed to take the oath of office.

Mr. Corson, of Lawrence: ^You'are correct. I beg your par-

OFFICKRS CHOSKN 5

don. The members of the Convention will now proceed to take
the oath of office. The Hon. Bart let t Tripp, Chief Justice of
the Supreme Court of the Territory, will now come forward and
administer the oath. The members of the Convention will all rise.
The Hon. Bartlett Tripp, Chief Justice of the Supreme Court:
You and each of you do solemnly swear that you will support the
Constitution of the United States, and that as members of this
Convention, you, under the Act of Congress enabling South Dakota
to be admitted as a State of this Union, will well and faithfully
discharge the duties of that office according to your best learning
and discretion, with all good fidelity to yourselves as well as to
the people. So help you God.

Mr. Corson, of Lawrence: Before leaving the hall, the mem-
bers of the Convention will attach their signatures in order that
Judge Tripp may affix the jurat to the oath.

Nominations for President of this Convention are now in
order.

Mr. Spooner, of Kingsbury: Mr. Chairman, In view of the
fact that we are about to proceed to inaugurate statehood, real,
and also that we wish to recognize the services of those who have
assisted us in making this possible, I beg leave to present the name
of the Honorable A. J. Edgerton, of Davison County, for President
of this Convention.

Mr. Sherwood, of Clark: Mr. Chairman, I rise to second
the nomination of this tried captain and skillful pilot of our ship
of state, recognizing that for four years the ship which he lanuched,
as captain, upon the stormy sea, has been honored in every port,
and that now as we are entering into the harbor, we can have no
surer guarantee that we will reach that harbor safely than to place
this skillful captain at the helm. I therefore second the nomination
of Honorable A. J. Edgerton. (Applause).

Mr. Price, of Hyde: Mr. Chairman, I take pleasure, Sir, in
presenting the name of -S. B. Van Buskirk, of Codington County,
for permanent President of this Convention. Without derogating
anything which has been said of the eminent jurist who has been
placed in nomination, I 'can commend to you S. B. Van Buskirk
as a man eminently qualified to fill the important duties of that
station. A friend of statehood, he has labored in the past, he
believes in the present, and is hopeful of the future, and would
make this Convention an excellent president.

Mr. Corson. of Lawrence: Are then- anv other nominal

SOUTH DAKOTA DEBATES 188 9

There being no other nominations I declare the nominations closed.
Judge A. J. Edgerton and Mr. S. B. Van Buskirk are nominated.
How shall these gentlemen be voted for at this time?

A Voice: Roll call.

Mr. Corson, of Lawrence: The roll will be called and each
member as his name is called will announce the candidate for whom
he intends to vote; and I will ask Mr. Caldwell, of Minnehaha,
and Dr. McGillicuddy, of Pennington, to step forward and take
the names as they are called. As each -gentleman's name is called
he will announce the gentleman for whom he votes.

(Three delegates had voted when Mr. Van Buskirk took the
floor.)

Mr. Van Buskirk, of Codington: Mr. Chairman: I desire
at this time to decline the nomination, and will withdraw my
name. (Great applause.)

Mr. Neill, of Grant: Mr. President, I move that the calling
of the roll be dispensed with and that A. J. Edgerton be elected
by acclamation as^the President of this Convention.

Mr. Corson, of Lawrence: I think the motion is out of order,
unless it is without objection. If any gentleman objects to our
dispensing with the roll call he will now make it manifest. (Mo-
mentary pause). There being no objection, the motion is in -order.
It is moved and seconded that the roll call be dispensed with and
that the Honorable A. J. Edgerton be declared the unanimous
choice of this Convention for President. Are you ready for the
question? (Question) (Question). As many of you as are in
favor of that motion will signify it by saying aye. As many as
are o-pposed, will say no.. The ayes have it; and the Hon. A. J.
Edgerton is unanimously elected President of this Convention.
(Applause). I will appoint Dr. Spooner and Mr. Van Buskirk
a committee to escort Judge Edgerton to the chair.

BRThe Honorable A. J. Edgerton, President elect, was escor ed
to the chair amid great applause.

Mr. Corson, of Lawrence: Gentlemen of the Convention: I
have the pleasure and honor of presenting to you the gentleman
whom you have selected as your President, the Hon. A. J. Edger-
ton. (Applause).

A. J. Edgerton: Gentlemen of the Convention I can
not express to you upon this occasion the feeling that I en-

ORGANIZATION COMPLETED

tertain not only by reason of your selection of myself to this
place for the second time but in the manner in which it has been
done. All that I can say to you now is that I shall endeavor to
perform its duties to the full extent of my ability for the best in-
terests of South Dakota, and I know that you will aid me in pre-
senting to the people of South Dakota and the world a constitution
unrivaled, and that we may hereafter, under it, succeed to all of
those rights that in the opinion of some of us we have been so long
prevented from securing.

I thank you again, gentlemen, for this selection at the hands
of this Convention.

What is the further pleasure of the Convention?

Mr. Wescott, of Deuel: Mr. President, I move that E. W.
Caldwell of Minnehaha, be elected Temporary secretary.

A Voice: I second the motion.

By the President of the Convention: It is moved and seconded
that E. W. Caldwell, of Minnehaha be elected Temporary Secre-
tary of the Convention. Are you ready for the question? All
those in favor of this motion will signify it by saying aye; contrary
no. The ayes have it and Mr. Caldwell is unanimously elected
the Temporary Secretary of this Convention.

Mr. Jolley, of Clay: Mr. President, I move that a committee
of five be appointed by the Chair to provide rules for the govern-
ment of this Convention.

A Voice: I second the motion.

By the President of the Convention: It has been moved and
seccnded that a committee of five be appointed by the Chair to
provide rules for the government of this Convention. Are you
ready for the question? As many as are in favor of this motion
will signify it by saying aye; contrary, no. The ayes have it, and
the motion prevails.

The President appointed and the Secretary read the following
names of gentlemen appointed as the committee to provide rules:
Mr. John L. Jolley, of Clay; Mr. Wood, of Pennington; Mr. Clough,
of Codington; Captain H. A. Humphry, of Faulk; Mr. F. G. Young,
of Lake.

Mr. Kellam, of Brule: Mr. President, after congratulating
you, Sir, and the members of this Convention now assembled, and
the people generally of South Dakota, I desire to move that the
President 'of this Convention be authorized and requested to com-

SOUTH DAKOTA DEBATES 1889

municate by telegraph the greetings and congratulations of this
Constitutional Convention to the Constitutional Conventions of
North Dakota, Montana and Washington. (Applause).

Mr. Neill, of Grant: I second the motion, Mr. President.

The President of the Convention: You have heard the motion
made by Mr. Kellam, of Brule. Are you ready for the question?
As many as are in favor of the motion will signify it by saying aye ;
those opposed, no. The motion prevails.

Mr. Van Tassell, of Sanborn: Mr. President, I move you, Sir.
that the President of this Convention nominate a Conference
Committee of three to confer with the North Dakota Convention
as to the size of a joint committee to be selected by the two Con-
ventions, that being unsettled in the Act of Congress.

Mr. Lee, of Spink: Mr. President, I second the motion.

The President of the Convention: Gentlemen of the Con-
vention, it has been moved and seconded that a committee of three
be appointed by the Chair to confer with the North Dakota Con-
vention as to the size of the Joint Committee to be selected by the
two Conventions. Are you ready for the question?

Mr. Humphrey, of Faulk: Mr. President, being one of the
Committee on Rules, I hesitate to speak on this question; but the
facts are, it seems to me that it would be a part of the province of
the Committee on Rules, and a part of its business to present
this matter to the Convention for its action, and it does not seem
to me that it should be a matter to delay our adjournment on this
Fourth of July, and that there will be ample time to consider it
after the report of the Committee on Rules.

Mr. Kellam, of Brule: Mr. President, my thought is this,
that this is one of the first steps that this Convention should take
preliminary to the act of the State's admission, provided for by
the Omnibus Bill. I understand that this is simply the appoint-
ment of a committee to confer with the North Dakota Convention
as to the number of gentlemen comprising this commission and the
time as to when they will be prepared to meet with the commission
from South Dakota. With no disrespect to the Committee on
Rules — this is an exceptional committee, and I think that the
judgment of this Convention would be that the sooner we can get
this matter in the hands of the Commission, inasmuch as it is the
only matter that will necessarily consume any great length of time,

Tl-MI'ORAkY Rri.KS

tin- sooner this Commission will get to work, and tin- sooner they
will bo prepared to report. My judgment is that this is one of
tho first steps this Convention should take. It cannot be done
until we have conferred with the North Dakota Convention.

Mr. Weseott , of Deuel: Mr. President, I move an amendment
(0 the motion before the House, that this be left to the Committee
on Rules — let them see to this matter and return their report
after conferring together — after conferring with the Committee
appointed by that Convention.

The President of the Convention: It is moved that a com-
mittee of three be appointed to confer with the North Dakota
Constitutional Convention. It is now moved by the gentleman
from Deuel that this question be left to the Committee on Rules.
Are you ready for the question? (Cries of "Question"). The
first question will be on the reference. Those of the opinion that
this be referred to the Committee on Rules will say aye ; those op-
posed say no. The Chair is unable to decide. Those in favor of
the reference will rise and stand while the Secretary counts. You
will now be seated. Those of the contrary opinion will rise while
the Secretary counts.

The Secretary reported that there were 36 ayes, and 25 noes.

The President of the Convention: The reference moved by
the gentleman from Deuel is carried, and the whole question is
referred to the Committee on Rules.

Mr. Xeill, of Grant: Mr. President, I move you that we- now
adjourn until two o'clock tomorrow afternoon.

Mr. Caldwell, of Minnehaha: Mr. Chairman, I desire to move
that the rules of the Constitutional Convention'of 1885, shall obtain
so far as they may be applicable, until the report of the Committee
on Rules is adopted.

A Voice: I second the motion.

The President of the Convention: Are you ready for the
question? It has been moved and seconded that the rules of the
Constitutional Convention of 1885, shall obtain so far as they may
be applicable, until tho. adoption of the report of the Committee
on rules. Those of the opinion that the motion prevail will sax-
aye; contrary no. The motion is carried.

Mr. Xeill, of (irant: Mr. President. I will now repeat my
motion to adjourn.

Mr. Williams, of HonHomme: Mr. Chairman, in our gathering

10 SOUTH DAKOTA DEBATES 1889

(referring to Republican caucus) it was determined that the other
temporary officers would be appointed at this time.

A Voice: No Sir; only such as were necessary.

By the President of the Convention: That has no force in
this Convention. It has not been acted upon by this Convention.
It has been moved to adjourn until tomorrow at two o'clock.
Those of the opinion that the motion prevail will say aye; contrary
no. The motion prevails and the Convention is adjourned until
two o'clock tomorrow afternoon.

ADJOURNED.

SECOND DAY.

Friday, July 5th, 1889.

Two o'clock P. M.

The Convention re-assembled pursuant to adjournment. Mr.
Kellam, of Brule,. in the chair.

Mr. Kellam: I find a note from Judge Edgerton, President
of the Convention, asking me to take his place during his absence,
for the day ; this is the explanation of my being in his place. The
Clerk will please read the note.

Which was done as follows:

Sioux Falls, Dak., July 4, 1889.
HON. A. G. KELLAM:

Will you please act as President, pro tern, of the Convention
under the rules, during my absence.

A. J. EDGERTON.

The roll was called and every member answered to his name
as called.

Mr. Neill: I move that if there are any delegates present
today that were not sworn in yesterday, that the presiding officer,
(if authorized to do so) administer the oath of office to them at
this time.

The President, pro tern: Are there any delegates here now
who were not present yesterday to take the oath of office, if so let
it be known. It being a matter of considerable doubt whether
the President pro tern, will be authorized to administer this oath,
if these gentlemen will come forward, a Notary Public is present,
and will administer the oath of office.

H. M. Avery, Notary Public, administered the oath of office
to the following delegates who presented themselves for that
purpose: E. E. Clough, of Codington County; J. G. Davies, of
Edmunds; and R. C. Anderson, of Hand, as follows:

You and each of you do solemnly swear that you will support
the Constitution of the United Stairs and that as members of this

12 SOUTH DAKOTA DEBATES 1889

Convention you, under the Act of Congress enabling South Dakota
to be admitted as a State of the Union, will well and faithfully
discharge the duties of that office according to your best learning
and discretion with all good fidelity to yourselves as well as to the
people, so help you God.

The President pro tern: The Convention will now listen to
the reading of the Journal.

As the reading of the Journal proceeded the following cor-
rections were suggested:

Mr. Anderson: My residence should be Hand County.

Mr. Lyon: Lake County should read Miner County.

Mr. Scollard: Lawrence there should be changed to Meade;
a portion of Lawrence County was attached to Meade County and
Butte County, making up the third district ; just one tier of town-
ships.

The President pro tern: The territory from which you are
elected is now part of Meade County.

Mr. Culver: I would suggest the correction, making the
Journal read, Marshall County, where it now reads Day County.

Mr. Jolley: In the Twenty-first District, Kimball, of Union,
should be Kimball of Clay County.

Mr. Clough: I am down in the report as a laggard yesterday ;
I do not like to go into history as a laggard without the knowledge
that I am a substitute; I would like to have the Journal of the Pro-
ceedings changed just a little; that portion saying, "All members
responded except" etc. I was substituted to perform a public
service, connected with the national celebration yesterday. I
was not a laggard.

The President pro tern: The members, as they take the floor,
will announce their names, so that the stenographers may know
to whom to credit what is said ; we are making history now.

Mr. Neill: I call Mr. Caldwell's attention to the fact that
he was clerk, pro tem; the Journal was not so signed.

The President pro tem: The Chair did not understand the
suggestion of the gentleman from Codington, to be in such shape
that any action should be taken upon it; does the Convention
consent to the correction of the minutes so as to correspond with
the correction suggested by Mr. Clough?

Mr. Xeill: I do not understand how the Convention can.

Mr. Clough: I believe it is due a man that did as hard a piece
of work as I did yesterday, without any notice, that he do not go

CLOUGH'S EXPLAN \

into history as a laggard; I think it is due to me; that it might to
i in some form and some way, why I was not here. I was
detailed at Sioux Falls, to give a public- address, as a substitute,
and was so engaged cfuring the hour set for the assembling of this
Convention.

The President pro tern: Is there objection to the eorreetion
of this record so as to correspond with the suggestion of Mr. Clough ~'.

Mr. Xeill: I have no objection to its being done in that form ;
to take some action today, explaining the absence is another thing;
I do not think that a correction in yesterday's proceedings would
be regular; I do not think it would be in place.

Mr. Caldwell: I would say that I remember there was some
mention made at the time, of Mr. dough's absence, of his being in
the city; I believe some reference: was made to the circumstances
of his absence; that being the case it might, without any very great
disturbance be incorporated in here as of the pro<
terdav.

Mr. Lee: I think the gentleman from Minnehaha was correct ;
we mentioned the fact Mr. Clough was doing his duty on our great
celebration day.

Mr. Matson: I noticed particularly, that the explanation
was made, that Mr. Clough was in the city; no statement at all
as to what he was doing; simple statement was made that Mr.
Clough was in the city.

A Voice: If the correction is made as suggested, how will
you explain this fact that all the other members were sworn in
by the Chief Justice, and he comes in today and is sworn in by a
Notary Public-.

The President pro tern: I do not understand that tin-
should be so changed as to show his presence on yesterday, but
the record should be so amended as to show why he was absent,
invention object to the words suggested by Mr. Clough.
which shall explain upon the record tin- reason of his al
being inserted:' If there is no objection now made-, it will betaken
as the sense of the Convention that tin- record should be so amended.

The Chair hearing no objection, the Journal will be so amended.

Mr. Ileninger: In the printed list of the names of the mer. '
of 1 he ()t h District , my name is spelled wr

The President pro tern: There- being no further corrections,
the record will then stand as read and amended.

14 SOUTH DAKOTA DEBATES 1889

The President pro tern: The next order of business is com-
munications and presentations of petitions.

Mr. Caldwell: There are two communications upon the table
of the Clerk.

The President pro tern: The Convention will listen to the
reading of the communications.

The Clerk reads as follows:

Bismarck, Dakota, July 4th, 1889.
To THE CONSTITUTIONAL CONVENTION OF SOUTH DAKOTA, Sioux

FALLS, DAKOTA.

The Constitutional Convention of North Dakota sends greeting
and bids you God speed in your advance movement towards state-
hood and full American citizenship. May the four new stars about
to be added to the national flag not lose in brilliancy through lack
of care in laying the foundations of the states to be. Let Washing-
ton bring fruits and flowers, Montana its precious metals to add to
the beauty and wealth of the nation, while the Dakotas will bring
wheat and corn to feed the people of the world.

F. B. FANCHER,

President.

Olympia, Washington Ter., July 4, 1889.
HON. A. J. EDGERTON,

President of the South Dakota Constitutional Convention,
Sioux Falls, Dakota.

The Washington Constitutional Convention returns greeting
to the South Dakota Convention.

The time is auspicious. The Empire State of the Pacific
Northwest will join her sister in every onward development.

J. G. MOORE,

Chairman.

The President pro tern: The next order of business under
the rules, is unfinished business, of the previous day.

Mr. Caldwell: If I may be permitted, I would like to bring
up something that is properly in the nature of a communication.

The President pro tern: The Convention will ret urn to that
order of business.

Mr. Caldwell: The general government as it provides the
two houses of the Territorial Legislature with a daily journal, and
also provides for the printing of the Journal at the close of the
session, the representative of Secretary Richardson, — Mr. C. W.
Hubbard, — has arranged for the printing, daily, of the Journal
of this body, which will be paid for by the general government ;
and the communication is to the effect that this will be printed.

ROUTINE 15

Now then, I would like to ask for directions here; that the Con-
vention give instruction as to the number of copies it would like
to have, and that there be an arrangement made for the correction
of the Journal, in order that the daily Journal may be properly
arranged for going into the volumes which shall be printed. This
is at the request of Mr. Hubbard, representing the Secretary of
the Territory.

The President pro tern: The rules now in operation, (being
the rules of the last Convention) provide that the President of the
Convention shall correct the Journal before presenting it next
day. This is a matter of work of the President by the rules.
If such rule shall not be reported by the Committee on Rules
when they report, then such action can be taken by the Convention
as to that matter as they think advisable ; the present rules impose
upon the President that duty.

Mr. Caldwell: Dictate the number of copies that shall be
ordered printed, and the Secretary will liquidate the bill.
*.#} Mr. Sterling: In order that the matter may be brought
before the Convention, I move that two hundred copies a day
be printed, of the Journal; that will bring out an expression.

Mr. Lee: I rise to second the motion.

The President pro tern: Is the Convention ready for the
question?

The motion reaching a vote, prevailed.

Mr. Caldwell: I also make a communication from the repre-
sentative of the Secretary, to the effect, that provision has been
made for placing upon the desk of each member a small placard
giving his name and county ; that these will be furnished at such
a time as the Convention may determine the location of its several
members. I make this communication in order that if the Conven-
tion desires to have any different arrangement of the members, —
to determine the seats by lot, it may be attended to, so that once
the seats of the various members be definitely determined upon,
these placards will be attached to the desk, and so that it will
enable members either in front or back to know who it is speaking.
I make this communication merely for the convenience of the
Convention.

The President pro tern: I think the Convention understands
the suggestion clearly with reference to the cards to be attached
to the desks, and if the Convention desires to take any action in

16 SOUTH DAKOTA DEBATES 1889

regard to the location of the members in seats, it will be desirable
to do that before this plan is put into execution.

Mr. Price: I move you, Sir, that we proceed to' the selection
of seats by lot. I notice today, the seats are not occupied by the
same members of the Convention that they were yesterday in a
great many instances ; in order to avoid any trouble in that direction,
I think this should be done without delay.

Mr. Lee: My head is snowed by number and weight of years.
I am a little deaf. I selected this seat ; I think the majority selected
seats yesterday; we are all quite well-fixed here; I do not think
we can better ourselves with a change; if we do, I want the priv-
ilege of being one to retain the seat already selected.

Mr. Xcill: What order of business are we working under just
now?

The President pro tern: Communications and presentations
of petitions.

*The President pro tern: The gentleman from Hyde, (Mr.
Price) does not seem to be supported in his motion, and the ques-
tion can be renewed later, if he desires to do so.

The President pro tem: The Convention will now give its at-
tention to unfinished business of the previous day.

Mr. Neill: I move we proceed to the election of subordinate
officers of this Convention.

Which motion was duly seconded and coming to a vote,
prevailed.

The President pro tem: The Convention will now proceed to
the election of subordinate officers.

Mr. Atkinson: The Act of Congress under which we are at
work, does not provide for a very strong clerical force, and as some
of the subordinate officers will probably not have much to do in
that line, I move you that they be selected with the understanding
that they do such work as is required of them, even if it is not in
the line their position would indicate. The Door Keeper, and
Messengers will have very little to do; we may as well select a man
that is a ready penman, that we might use him writing part of
the time, and make him earn his money ; that will help us out.

Which motion did not receive a second.

Mr. Edgerton, of Yankton: I place in nomination for the
position of Chief Clerk, Rev. F. A. Burdick, of Yankton County.

PERMANENT OFFICERS CHOSEN 17

Mr. Van Eps: I place in nomination W. W. Goddard, of
Sioux Falls, for Chief Clerk.

The President pro tern: I appoint Mr. Sterling, of Beadlev
and Mr. Elliott, of Turner, as tellers to take the ballot.

Mr. Harris: I move that this election be by VIVA VOCE vote
upon calling the roll.

Which motion prevailed.

The President pro tern: The motion prevails, and the Chief
Clerk will be elected VIVA VOCE ; each member responding to his
name as called, the candidate of his choice.

As a result of said ballot, Mr. Burdick received fifty votes
and Mr. Goddard, twenty-one.

The President pro tern: The Convention has selected F. A.
Burdick as Chief Clerk.

Mr. Wescott: If it is in order to make a nomination of En-
rolling and Engrossing Clerk, I take pleasure in placing before the
Convention, for that position, Dr. A. W. Hyde, of Brookings
County, a gentleman of culture and in my judgment peculiarly
fitted for the duties of that office, and if he is elected will honor
the position.

Mr. Harris: I would place in nomination, James Kingsbury,
of Yankton County.

The President pro tern: There being no dissenting voice, it
will be taken as the will of this Convention that these elections,
be by VIVA VOCE vote. You have as nominees for the position
of Enrolling and Engrossing Clerk, 'Dr. A. W. Hyde, of Brookings
County, and James Kingsbury, of Yankton County; as your names
are called, respond to the candidate of your choice.

Mr. Hyde received fifty votes, and Mr. Kingsbury nineteen,
and Mr. A. W. Hyde was declared duly elected to the position of
Enrolling and Engrossing Clerk.

Mr. Corson: I now move we proceed to the election of Ser-
geant-at -Arms of this body ; I nominate James Carney, of Lawrence
County, for that position. Mr. Carney is one of our old residents,
and is the only officer of the Convention we are asking for west of
the river, and I hope he will receive the vote of this Convention.

Mr. Van Buskirk: I nominate W. T. Buchanan, of Minnchaha
County.

Mr. Price: I take pleasure in seconding the nomination of
Mr. Buchanan.

18 SOUTH DAKOTA DEBATES, 1889.

Nominations being declared closed, the Convention proceeded
to VIVA VOCE vote, which resulted in the election of James Carney
to the position of Sergeant -at -Arms, —Tie receiving fifty votes, and
Mr. Buchanan, twenty-one votes.

Mr. Dickinson: I move we now take up the election of a
Watchman, and name E. C. Warner, of Webster, Day County,
for that office.

Mr. Neill: There appears to be no other nominees, and we
might expedite matters, by electing Mr. Warner by acclamation;
that is the motion I make.

Which motion was duly seconded.

Mr. Cal dwell: Does the rule permit it?

The President pro tern: I do not know of any rule upon the
subject.

The motion prevailed, and Mr. E. C. Warner, was declared
elected to the office of Watchman of the Convention.

Mr.'Matson: I move the election to the office of Messenger,
Frank Hoppin, of Iroquois.

Mr. Anderson: I place in nomination, Mr. P. D. Durflinger,
of Hand County.

The President pro tern: In the absence of a motion I shall
take it the sense of the Convention to proceed as before to a VIVA
VOCE vote.

Mr. Hoppin received forty-eight votes, and Mr. Durflinger
twenty-three. Mr. Hoppin was declared elected to the position
of Messenger of this Convention.

Mr. Willis: I will nominate to the office of Chaplain, Rev.
J. A. Wakefield, of Brookings.

Mr. Ramsey: I wish to place in nomination for the position
of Chaplain, Bishop Hare, of Sioux Falls.

Mr. Wakefield received forty-five votes, and Bishop Hare
twenty-six.

The President pro tern: By your vote as announced, Rev.
Mr. Wakefield is elected Chaplain of the Convention.

Mr. Sherwood: Are the offices now all filled? If that is the
case, and it would be in order at this time, I offer this resolution
and move its adoption.

The Constitutional Convention of South Dakota, now duly
assembled and organized, does hereby declare on behalf of the people
of said State, that we do hereby adopt the Constitution of the
United States.

DRAWING SEATS 19

Mr. Caldwell: I am not certain Mr. President, and will
simply ask generally for information, if he has consulted the
Organic Act, and whether or not this complies exactly with the
requirements; I do not think such a resolution must be adopted.

Mr. Sherwood: It is as the Omnibus Bill requires; it is ex-
actly the language of the section. (Reading from the Act.)

The President pro tern: The gentleman moves the adoption
of this resolution as read by the Clerk.

Mr. Neill: I suggest that that be adopted by rising vote.
Which suggestion was acted upon without objection.

The President pro tern: Seventy-three gentlemen have
voted, and all have voted in the affirmative. The resolution is
unanimously adopted.

The President pro tern: We will now pass to the order of
business. Unfinished business.

A Member: I move that each delegate be allowed to write
his name upon the desk blotter on the desk in which he prefers
to sit (unless there are members who wish to change) and then
the cards that are presented can be fastened upon the desks and
compared with the names so written, as suggested by Mr. Caldwell,
of Minnehaha.

Mr. Lee: Would it not be well to have those of the same
county delegation sit near each other; would not it be well to have
a few changes.

Mr. Caldwell: I believe it will give better satisfaction if
there should be a determination of seats by lot. The custom in
at least the Territorial Legislature, I believe is, that the number
of seats to be drawn are written upon ballots, put into a box, and
that they are then drawn out, then the one who gets the first
number has the choice; it is not that he draws a seat per number
but that he draws a choice; I believe that will be more satisfactory.

The President pro tem: The gentleman at my right made
a motion, but it is not before the Convention.

Mr. Neill: I rise to a point of order; some of these motions
being made out of the order of business; this all comes up in the
proper place. We now have the matter of unfinished business.

The President pro tem: The Chair entertained that business
as long as no objection was made; if the gentleman will let his
motion remain until \vc reach that order of business.

20 SOUTH DAKOTA DEBATES 1889

The President pro tem: The report of select committees is
called for.

Mr. Jolley: The committee on rules have met and agreed
substantially upon the rules that they will submit for the consid-
eration of this convention. That they will differ but slightly from
the rules of 1885 convention, and the result is that the rules that the
committee are going to report will have to be adopted. (Laughter.)

We have met this dilemma in the Committee ; we find we have
not a gentleman on this Committee who can write ; we will probably
be ready to report for the consideration of this Convention to-
morrow afternoon; there is one branch upon which the Committee
are agreed, and I am instructed to report this afternoon, and this
is substantially the views of the Committee.

Sioux Falls, Dak., July 5th. 1889.
MR. PRESIDENT:

Your Committee on Rules have instructed me to report that
the Joint Commission on the part of South Dakota to agree upon
an equitable division of all property belonging to the Territory of
Dakota, the disposition of all public records and adjust and agree
upon the amounts of debts and liabilities of the Territory shall
consist of seven members, to be appointed by the President of this
Convention; that said Commission be entitled to a clerk, and to
employ such assistance as they sha^l deem necessary.

JOHN L. JOLLEY,

Chairman.

Mr. Jolley: For the purpose of bringing this report before
the Convention, I move you, Sir, that the report be adopted.

Mr. Neill: I second the adoption of the report.

The President pro tem: You have heard the report of the
Committee on Rules; the question before the Convention is upon
the adoption of this report just read to you by Mr. Jolley.

Mr: Jolley: That part of the report, — that on which this rule*
is founded is Section Six of the Omnibus Bill, which reads as
follows:

It shall be the duty of the Constitutional Conventions of North
and South Dakota to appoint a joint commission, to be composed
of not less than three members of each Convention, whose duty it
shall be to assemble at Bismarck, the present seat of government of
said Territory, and agree upon an equitable division of all property
belonging to the Territory, of Dakota, the disposition of all public
records, and also adjust and agree upon the amount of the debts
and liabilities of the Territory, which shall be assumed and paid by

JOINT COMMISSION 21

each of the proposed States of North Dakota and South Dakota;
and the agreement reached respecting the territorial debts and
liabilities shall be incorporated in the respective constitutions,
and each of said States shall oblige itself to pay its proportion of
such debts and liabilities the same as if they had been created by
such States respectively.

The Committee have instructed me to report verbally that
they considered this matter this morning and did not deem it part
of their duty, and did not deem it the part of prudence to consult
North Dakota before selecting this number. It is not one of
those things to be considered ; suppose North Dakota had ten, and
South Dakota had seven members of that Commissoin, it is for
each of these states to say whether they will adopt the report
which is agreed to by the Commission coming from each one of
these states. After consultation with a number of the members
of the Convention, the highest number asked for by any of the
members of the Committee was placed at seven; the Committee
reported seven; that they should proceed as quick as they are
named, to Bismarck and at once agree upon the division; when
that is made, then it comes before this Convention whether it
will adopt their report. Mr. President, it is desirable and you
assume the responsibility of appointing the committee recommended
I should not like to stand in the way , or hinder a speedy settlement
of the matter, that we may get the report of this Commission
before us. If there is hurry necessary, I certainly shall not in
Convention delay this action; the Committee before considered
this matter fully and now ask your consideration of the report ;
I am certainly in favor of receiving the report and relieving the
Committee from a portion of their work. I would like to explain a
little further why we made the number, "seven". We said if
three politicians went up there and made a settlement, they would
be in a sort of political purgatory at once; and it was not safe to
serve any body of green politicians that way ; there are seventy-five
members of that Convention, and if they have but three members
of that Commission there would be seventy-two others behind them ;
for moral force; we felt we ought to have just as. heavy moral force
behind our men proportionately as they have behind theirs; we
believe that these gentlemen going into the face of another Con-
vention ought to have the moral force of numbers and therefore,
we unanimously, on that ground, settled the number at seven.

Mr. Hartley: I rise to a point of order; as I understand the

22 SOUTH DAKOTA DEBATES 1889

first motion will be received instead of being adopted; I therefore
move that this report of this Committee be received.

The President pro tern: The Chair did not understand the
point of order ; this is a report of a select committee presented and
read to the Convention; it is received without action on the part
of the Convention; the Chair so understands it.

Mr. Peck: I will move as a substitute, that the report be
received and the adoption remain an after consideraion.

The President pro tern: It is moved that the report simply
be received by this Convention. Are you ready for the question
on the amendment?

Mr. Jolley: There can be no question about the parlimentary
practice on such a motion as that (?) When this Convention ap-
points a committee and asks a report at its hands and they present
that report, it would be the heighth of discourtesy to make a
motion to receive it; if the gentlemen do not like this report, or if
there is anything wrong about it, they can correct it; the proper
way is to vote it down or either send it back to that Committee, or
another one, but to refuse to receive the work of a committee asked
to make a special report is folly.

The President pro tern: The Chair has already expressed its
opinion.

Mr. Lee: It is a distinction without a difference which is
not right ; the question now is upon the adoption of the amendment.
I move you that clause of the resolution authorizing a clerk, be
stricken out, for the reason there is no provision for paying this
clerk ; it is too much to ask a man to go up there and pay his own
expenses.

Mr. Clough: If it is in order, we believe that there is provision
for the payment of this clerk, and believing that the provision is
in this matter, we may mention, the Commission will have to have
maybe, two or three clerks ; the work of the Commission will re-
quire a great amount of accountant work.

The President pro tern: The question as to an appropriation
for a clerk is not before the House ; it is out of order ; the question
is now upon the adoption of the amendment of the gentleman
substituting the term "receive" this report for its adoption.

Mr. Peck: I would like to inquire whether receiving this re-
port, adopts it, or whether receiving it leaves the adoption of it
until bye and bye, and leaves the power of appointing this Com-

JOINT COMMISSION 23

mittee unsettled. My understanding is, if we receive this report,
it lays there for consideration by the Convention. If we adopt
it, it is past consideration.

The President pro tern: This report is received when it is
accepted, — when it is returned to this Convention and read, it is
then received; then action is taken as to its adoption or non-
adoption; does the gentleman insist upon the motion that the re-
port shall be received? The opinion of the Chair is, that the
motion is out of order, but the Chair is disposed to put it. The
Chair is now going upon the theory of the mover of this motion,
that this will not in any way commit the Convention to the action
suggested in the report but simply allows this Committee to make
this report to us.

Mr. Peck: If you will allow me to say, we have already re-
ceived this report, — what I desire to do is not to part with my
right and privilege to look this over and a little further consider
the matter before it passes out of my hands, — and if it is a fact
we have received it already, and must vote upon the resolution
that is the end of it so far as we are concerned; and this is action
by the Convention that would almost force me to move that it
lay upon the table until tomorrow, to accomplish my desire; all
I want is to get a little time to consider the matter that the Com-
mittee have had before them.

Mr. Wescott: I second the motion of Mr. Peck, (of Hamlin)
that it lay upon the table.

Mr. Jolley: I rise to a point of order, that the motion is out
of order.

Which point of order was sustained by the Chair.
Mr. Price: I move you, Sir, that the consideration of the
resolution as presented, be made a special order for tomorrow after
this body convenes. It is a matter of a great deal of importance
and something that should be considered carefully. There is
another question involved in this matter and the members ought
to have plenty of time to think about it. It is this question,
whether or not under the provisions of the Omnibus Bill you can
delegate the power to the President of this Convention to appoint
this Commission. I am not ready to say we can ! I think we should
thoroughly investigate this matter.

Mr. Jolley: On behalf of the Committee, would say, we are

24 SOUTH DAKOTA DEBATES 1889

glad the motion has been made to postpone action. So far as the
suggestion made by Mr. Price, that question presented itself to
the Committee and we took this view of it, by presenting the report
that we did to the Convention, and the Convention adopting that
report, — if they did adopt it, — made it the action of the Conven-
tion, to delegate the power to the President to appoint the Com-
mission ; if that was not sufficient power, then after the Commission
had been appointed by the Chair, to have the Convention ratify
that again.

Mr. Atkinson: I have no objection as to this delay in this
matter, but it seems to me that this Committee should be ap-
pointed at the earliest possible moment and be on their way to
Bismarck. It seems to me that we might arrange these matters
now, as far as the difference in opinion as to whether the President"
appoint or the Convention elect ; we can in a short time elect them
this afternoon. Let them be appointed and let them be on their
way. This delay is expensive.

Mr. Wood: The suggestion of the gentleman with reference
to the cost of delay is not important if my position is correct; I
have been advised of the fact that the Convention at Bismarck is
not fully organized and its organization will not be completed
before Monday, consequently if our Commission should arrive before
Tuesday, it will have to wait at Bismarck. The proposition sug-
gested by my friend, Mr. Price, is a matter that presented itself
to the Committee and so far as I am concerned, I' would like to
hear it discussed in the Convention. There may be a question
of delegation of power. The Committee of course considered the
proposition; I would like to have the members of the Convention
consider it for the purpose of making assurance doubly sure that
we make no mistake in that regard. We had better take until
tomorrow. I would not cause delay, but it is evidently the sense
of the Committee that we take a little time to consider this matter ;
today is Friday, tomorrow is Saturday, and you could not get
started the way the trains run to Bismarck. As a matter of fact
you will gain nothing by acting today. Sunday comes before you
could reach Bismarck. I think the opinion is almost unanimous
that the matter rest until tomorrow and give the gentlemen this
time to examine the matter thoroughly and discuss it.

Mr. Humphrey: If the only question at issue is the question
of the authority of the Convention to confer upon the President

JOINT COMMISSION 25

the power to appoint, — said appointments to be ratified by the
Convention, — it would save time that might perhaps be more
profitable to give to the President in making his selection of the
members of that Committee, if this is disposed of at this hour.
Mr. President, it is not probable that the appointment would be
made in time for the Commission to leave for Bismarck before
Monday or Tuesday ; it is not probable that he would appoint them
in a moment ; it is not probable that he would appoint them before
sometime tomorrow, at the earliest time, and if this is the only
question involved to necessitate delay, it seems to me it might
be overcome by adding these words "said appointments to be rati-
fied by this Convention". I would move you Mr. President, if
it is in order to place a motion before the House to that effect,
that the words, "said appointments to be ratified by this Con-
vention" be added to the report of the Committee on Rules.

Mr. Spooner: I support the original motion; I think this
should be a matter of mutual consideration; the Committee have
had an opportunity to consider it, and the Convention desires the
same opportunity.

The President pro tern: The question is upon making this
partial report of the Committee on Rules the special order for to-
morrow.

Which motion prevailed unanimously.

The President pro tern: The next order of business to occupy
the attention of this Convention will be consideration of reports
of standing committees.

Mr. Price: I desire to present a matter which I think of con-
siderable importance, to the two states about to be formed, and
one upon which action should be taken; that is relative, Mr. Presi-
dent, to the boundaries of the two new states. You will remember,
Sir, that the Omnibus Bill provides that the boundary shall be
changed from the Forty-sixth Parallel to the Seventh Standard
Parallel. It is true, Sir, that there are two Seventh Standard
Parallels in Dakota Territory ; a fact which may not generally be
known. It seems to me that this is a matter of great importance ;
that in defining the boundaries bewteen North and South Dakota,
it ought to have the careful attention of this Convention. I say. it
is fraught with importance for this reason; there are two Seventh
Standard Parallels well defined, and both of them have been en-
dorsed and reported, and have been through the Interior Depart-

26 SOUTH DAKOTA DEBATES 1889

merit, adopted. I have before me a diagram showing the exact
condition of things relative to this matter, prepared by the Surveyor
General of Dakota, together with a letter of explanation, which
enters into the full details of the whole matter. It seems to me
that if this question is not decided between the Conventions of
both North and South Dakota and boundary lines agreed upon,
well defined and interpreted, endless trouble and litigation will
grow out of it. It is true if we shall adopt and unanimously
declare the 7th Standard the boundary, North Dakota can claim
one and South Dakota, the other, both approved by general gov-
ernment. Another thing to be taken into consideration by this
Convention especially is this ; that if a general plank shall go into
this Constitution proclaiming and declaring the 7th Standard
Parallel the boundary line, North Dakota will get a great many
acres of land which does not belong to her, and in that land are
several school sections which sometime we hope will be very val-
uable ; but without discussing this matter further, 1 desire to move
that a commission consisting of three members be appointed by
the Chairman of this Convention to confer with a similar committee
to be requested to be appointed by the North Dakota Convention,
to determine upon and define the boundaries of this Territory. I
will "suggest this further that I have before me a complete diagram
of the whole matter and have a letter which explains the whole
matter in its fullest details and the Committee whoever may be
appointed especially, shall have the use of them.

Mr. Elliott: I second the motion.

Mr. Sherwood: It seems to me as this is a new matter also
coming before the Convention, and as it seems new matter entirely,
to all of us, that this should bear consideration as well as the matter
we have already considered. If the other needs consideration,
and if we are to send a commission to North Dakota to settle other
differences, why would it not be weir to incorporate into their
duties the settlement of this difference? I also move that this
matter be made a special order of business for tomorrow.

Mr. Price: I will consent that it be made a special order.

Mr. Dickinson; I move you that a committee of five be
appointed by the Chair to take this matter under consideration
to report tomorrow as to the facts in the case as they find them,
with recommendations.

Mr. Neill: I think we will b,e under the necessity of placing

ADJOURNED 27

a great many committees, and we are forestalling the work of our
Committee on Order of Business. The best thing we can do at
the present time, is to adjourn at once and wait for their report.
I move we do now adjourn.

Mr. Clough: I move that when we do adjourn, it be until
two o'clock.

Mr. Neill: I accept that.

The motion to adjourn, coming to a vote, a rising vote was
called for, which resulted in forty-one votes in the affirmative
and nineteen votes in the negative, and the Convention stands
adjourned until two 'o'clock,, tomorrow afternoon.

THIRD DAY.

Sioux Falls, Dak., July 6th, 1889.

Two o'clock P. M.

The Hon. A. J. Edgerton, President, in the chair.

The President of the Convention: The Convention will be
in order.

Prayer by the Chaplain as follows:

Our Father who art in Heaven, at the beginning of this session
come we before Thee to ask Thy guidance and Thy care; we will
thank Thee in every word, in every thought and in every deed, and
may all be done to the good of Thy people and to Thy glory. Help
us to remember that the fear of the Lord is the beginning of wisdom ;
and do Thou graciously bless us with the wisdom that will enable
us to so direct, that ours shall be the credit and our posterity shall
receive the benefit from this, our government, by us established.
Give us Thy divine care, in Jesus name,
AMEN.

The President of the Convention: Reading of the Journal
of yesterday.

The Chief Clerk read the Journal of yesterday.

The President of the Convention: Are there any corrections
to be made in the Journal.

Hearing none the Journal is approved.

Mr. Coats, of Minnehaha, has not been sworn in, and if there
is no objection he will now be sworn in as a member of this Con-
vention.

The following oath was administered to Mr. Coats, of Minne-
haha, by Joe Kirby, Esq., Notary Public.

You do solemnly swear that you will support the Constitution
of the United States, and that as a member of this Convention,
you, under the Act of Congress, enabling South Dakota to be ad-
mitted as a State of the Union, will well and faithfully discharge
the duties of that office according to your best learning and dis-

GREETING FROM MONTANA 29

cretion, with all good fidelity to yourself as well as to the people.
So help you God.

The President of the Convention: I will ask the Clerk to
read a communication received from the President of the Constitu-
tional Convention of Montana.

The Chief Clerk read the communication as follows:

Helena, Montana, July 5th, 1889.
To Hon. A. J. EDGERTOX:

Montana, standing on the threshold of statehood, reciprocates
your cordial greeting, and indulges the hope that the Constitution
which you have met to frame may be based upon the virtues and
intelligence of the people, and when so framed, it may survive the
years to come in all its vigor, unimpaired, until a hundred sovereign
states have been erected into one confederacy, there to remain an
indestructible and indissoluble union.
(Signed:) J. K. TOOLE,

Temporary Chairman.

(Applause.)

The President of the Convention: What is the further busi-
ness before the Convention? I am informed that there is a special
order made for this afternoon at two o'clock.

Mr. Neill, of Grant: Mr. President, that was not set at any
hour, and I think it should properly come in after the report of
the Committee on Rules.

Mr. Caldwell, of Minnehaha: Mr. Chairman, has the roll been
called?

The President of the Convention: The Chief Clerk will call
the roll.

Mr. Neill, of Grant: Mr. Chairman, I move the calling of
the roll be dispensed with.

The President of the Convention: It will be so ordered unless
objection is made.

What is the further pleasure of the Convention?

Mr. Jolley, of Clay: Mr. President: Yesterday afternoon
just before we adjourned, there was a motion made to postpone
the consideration of the report of the Committee on Rules until
today, and there was no hour specified at which the report should
be taken up. The situation is this: The Committee made a
partial report; the report of the number of employees they would
ask to be appointed by this Convention, and a motion was made
to adopt the report, and that is the question to come up at this
time.

30 SOUTH DAKOTA DEBATES 1889

The President of the Convention: The report has been read
to the Convention?

Mr. Jolley, of Clay: Yes, sir.

The President of the Convention: Is the Convention ready
for the question?

Mr. Kellam, of Brule: Mr. President, there has been a diversity
of views expressed upon this question of the number and the forma-
tion of this commission, and it migth result in a discussion which
would make a voluminous and expensive report to print. I there-
fore move that the Convention now go into committee of the Whole
for the consideration of the report of the Committee on Rules, so
far as made.

A Voice: I second the motion.

The President of the Convention: It has been moved that
the Convention do now go into committee of the Whole for the con-
sideration of the report of the Committee on Rules so far as made.
Is the Convention ready for the question? Those of the opinion
that the motion prevail will say aye; those opposed no. The
motion is carried. I will call Mr. Sterling, of Spink, to the chair.

Mr. Sterling, of Spink, took the chair.

Mr. Price, of Hyde: Mr. Chairman, at this time I will call
for the reading of the report of the Committee as presented yesterday.

The Chairman of the Committe -. of the Whole ; The Clerk
will read the report.

The report of the Committee on Rules, as submitted yesterday,
was read by the Chief Clerk.

The Chairman of the Committee of the Whole: What will
the Committee do with the report?

Mr. Jolley, of Clay: Mr. Chairman, I move that the report
of the Committee be adopted.

A Delegate: I second the motion.

The Chairman of the Committee of the Whole: Gentlemen,
you have heard the motion that the report of the Committee be
adopted. Are you ready for the question?

Mr. Atkinson, of Brookings: Mr. President, I would like to
move an amendment to strike out as much of it as authorizes them
to employ a clerk, for the reason that there is no provision made to
pay this clerk.

Mr. Jolley, of Clay: Mr. Chairman, I would like to change
my motion. I move that this Committee be instructed to report to

CONSIDERATION OF RULES 31

the Convention and recommend that the report be adopted.

The Chairman of the Committee of the Whole: Exactly.
There is no second to the motion to amend the motion.

Mr. Wood, of Pennington: I second the motion.

Mr. Jolley, of Clay: You second the amendment?

Mr. Wood, of Pennington: No, sir.

By the Chief Clerk of the Convention: Mr. Chairman, may
I suggest that by the rules all motions and amendments shall
be reduced to writing.

Mr. Jolley, of Clay: Yes, but not upon the suggestion of
the Chief Clerk, Mr. Chairman, but by the President or any of the
members! (Laughter.)

The Chairman of the Committee of the Whole: You have
heard the motion and the amendment —

Mr. Wood, of Pennington: Mr. Chairman, I did not second
the amendment but the motion.

The Chairman of the Committee of the Whole: Very well, I
did not so understand it. The question is upon the motion to
adopt the report of this Committee. Those of the opinion that
the motion prevail will say aye; those opposed will say no.

The motion is carried.

Mr. Jolley, of Clay: Mr. Chairman, there is no instruction
for this Chairman to report to the President as yet. I was just
going to move that the Committee rise and report to the Convention
and recommend that the report be adopted.

A Delegate: I second the motion.

The Chairman of the Committee of the Whole: It is moved
that the Committee of the Whole now rise and report to the Con-
vention and recommend that the report of the Committee on rules
be adopted. Are you ready for the question? Those in favor
of this motion will say aye; those opposed no. The ayes have it
and the motion prevails.

The President of the Convention resumed the Chair.

Mr. Sterling, of Spink: Mr. President, I have to report to
the President of the Convention that the Committee of the Whole
have had under consideration and recommend to the Convention
the adoption of the report of the Committee on Rules.

The President of the Convention: Gentlemen of the Con-
vention, the Chairman of the Committee of the Whole, reports
that the Committee of the Whole have had under consideration

32 SOUTH DAKOTA DEBATES 1889

and recommends to the Convention the adoption of the report
of the Committee on Rules. Are you ready for the question?
Those of the opinion that the motion prevail will say aye; those
opposed no.

The ayes have it and the motion prevails.

The President of the Convention: I was not here yesterday.
Did I understand the Chairman of the Committee on Rules to state
that the Committee on Rules was ready to make a further report ?

Mr. Jolley, of Clay: Yes, Sir, we are ready, Mr. President,
to report when that order is reached. That report that has just
been adopted was made a special order.

Mr. Sherwood, of Clark: Mr. President, there was another
matter made a special order for this time.

The President of the Convention: Was there another special
order, Mr. Clerk?

The Chief Clerk read from the Journal of yesterday, as follows:
"Mr. Price moved the appointment of a commission of three to
confer with a like commission from the Constitutional Convention
of North Dakota, to definitely determine the boundary between
the two states."

The President of the Convention: The time for the consid-
eration of the special order has arrived.

Mr. Price, of Hyde: Mr. President, I desire at this time to
withdraw, that motion creating a special committee to consult
with a like committee of the North Dakota Convention, with the
consent of the second.

A Delegate: I consent .to it.

Mr. Price, of Hyde: Mr. President, now Sir, I desire to move
that the whole matter relating to boundary be referred to a special
committee to report to this Convention as soon as they can, and
that that committee be empowered to send for persons and papers,
or the Surveyor General or anybody else they desire to consult
in regard to the matter.

A Delegate: I second that motion.

Mr. Neill, of Grant: Mr Chairman, I am opposed to raising
special committees where it properly falls within the channel of
the regular committee. We have been anticipating these matters
somewhat and we have adopted our standing committees. The
report will soon be made. This matter can be referred to the proper

BOUNDARIES 33

committee. I move you that this entire matter be referred to the
regular standing committee when it is appointed,

Mr. Price, of Hyde: I accept the amendment Mr. Chairman.

By the President of the Convention: It is moved that the
question of boundary be referred to the standing Committee on
Boundaries. Are you ready for the question? Those of the
opinion that the motion prevail will say aye; those opposed say no.

The ayes have it and the motion prevails.

The question of boundaries is referred to the Committee on
Boundaries.

The President of the Convention: I understand that the
Committee on Rules is ready to make their further report.

Mr. Jolley, of Clay: Mr. President, the Committee on Rules
have instructed me to make their report — in fact they make the
report themselves. This morning at the meeting of the Committee
this report was read and signed by all the members. Since it
has been signed, on Rule No. 11 there will be a minority report.
The rules as ordered reported by the Committee are as follows:

Here Mr. Jolley read the report of the Committee on Rules
with reference to the number of members to constitute the joint
commission, and the introductory part of the report of the same
Committee, with reference to standing committees.

Mr. Jolley, of Clay: (Continuing.) With reference to this
first committee, the Committee on Judiciary, touching members,
the understanding of the Committee, which of course does not
bind the Convention, was that two members should be appointed
from each Judicial District, as provided for in the Sioux Falls
Constitutional Convention (1885) and one at large.

(Mr. Jolley here proceeded to read the report of the Committee
with reference to rules for the government of the proceedings of
the Convention.)

This Rule 1 1 is the rule in which there is a disagreement of the
Committee. (Reading Rule 11.)

Mr. Wood, of Pennington: Mr President; I think the Chair-
man of the Committee is under a misapprehension. There was a
suggestion made by a member of the Committee to amend so far
as related to our report on Rule 1 1 , but on the matter being pre-
sented individually to the members, the minority concurred with
the majority. I think the Chairman misunderstood what was
said. \\Y all concurred in the report.

34 SOUTH DAKOTA DEBATES, 1889.

Mr. Jolley, of Clay: I certainly misunderstood.

The President of the Convention: I understood' the Chairman
of the Committee on Rules to move the adoption of the report.

Mr Jolley, of Clay: I so intended. I move that the report
of the. Committee on Rules be adopted.

The President of the Convention: It has been moved that
the report of the Committee on Rules be adopted. Are you ready
for the question?

(The motion was seconded.)

(Cries of question, question!)

Mr Wescott, of Deuel: Does this adopt the report without
further discussion?

The President of the Convention:.- I simply asked if the Con-
vention was ready for the question.

Mr. Wescott, of Deuel: I desire to move to amend, by reading
these rules section by section, after which, if there is no objection
made, they will be considered as adopted, and so on to the end.
And if no objection is made at once, that the rules be adopted.

Mr. Jolley, of Clay: The rules as reported were the rules that
governed the Constitutional Convention of 1885. These rules as
reported here were substantially the same.

Mr. Wescott, of Deuel: Mr. Chairman; I don't doubt that,
but I don't think we can with only one reading intelligently com-
prehend them. If my motion is seconded, I hope the House will
sustain me.

A Delegate: Well, I'll second your motion.

Mr. Huntley, of Jerauld: There is one little thing in the
rules, Mr. President, it seems that two members may demand a
roll call, and we may be kept here a very long time. It ought at
least require five. I move in that particular an amendment that
it be changed from two to five.

The President of the Convention: It is moved by the Chair-
man of the Committee on Rules that the report be adopted. It
is moved by the delegate from Deuel that the rules be read section
by section and that each rule be acted upon separately. Is the
Convention ready for the question on the amendment of Mr.
Wescott, of Deuel?

A Delegate: I did not understand the motion was seconded.

The President of the Convention: It was seconded. The
question is now upon the amendment by the gentleman from Deuel

CONSIDERATION' OF RULES 35

County that the report shall be read rule by rule and adopted by
the Convention. Is the Convention ready for the question? As
many as are of the opinion that the amendment be adopted say
aye; those of the contrary opinion say no. The noes appear to
have it. The noes have it.

Mr. Huntley, of Jerauld: Mr. President, I move that the rule
be amended so as to require five members to call for a roll instead
of two.

(The amendment was seconded.)

Mr. Clough, of Codington: Mr. President, we studied that
matter somewhat, and we believe that the. ends of justice might
sometimes be reached better upon the call of two members, rather
than five.

Mr. Jolley, of Clay: Mr. President; if I was afraid to make
any record here so that the boys who sent me would not know it, I
would make it ten instead of two.

Mr. Neill, of Grant: The moving of any motion to get it
before this House requires two members. There is then no dif-
ference between an ordinary motion and the calling of the yeas
and nays on any question, under these rules. We might find our-
selves annoyed very much by some captious member or two. I
think five is certainly a very low limit, and I hope this amendment
will prevail.

The President of the Convention: The question before the
Convention is on the amendment of the gentleman from Jerauld.
The recommendation of the Committee is that two delegates
may call for the roll. The amendment is to strike out "two"
and insert "five". Are you ready for the question? Those of
the opinion that the amendment prevail will say aye; those op-
posed say no. The Chair is unable to determine. Those in favor
of the amendment will rise and stand to be counted. You may
now be seated. Those of the contrary opinion will rise and stand
to be counted. Be seated.

The Secretary announced that there were in favor of the
amendment, 30 ayes, and against the amendment 42 noes.

The President of the Convention: So the amendment is lost.
Are there any further amendments? The question now recurs
on the original motion that the report of the Committee be adopted.
Is the Convention ready for the question? Those of the opinion
that the motion prevail will say aye; those opposed say no. The

36 SOUTH DAKOTA DEBATES 1889

ayes have it, and the report of the Committee on Rules is adopted.

What is the further pleasure of the Convention?

Mr. Spooner, of Kingsbury: Mr. Chairman, I notice that
there are in the city, and perhaps in this audience, some who have
been members of both of the prior Conventions, namely, Hon. H.
J. Campbell, and Hon. G. C. Moody, and I move you that they
be accorded the courtesies of the floor.

A Delegate: I second the motion.

The President of the Convention: It is moved that all mem-
bers of the two Constitutional Conventions, of 1883 and 1885, be
accorded the privileges of the floor. Those of the opinion that the
motion prevail will say aye ; those of the contrary opinion will say
no. The ayes have it and the motion prevails.

Mr. Neill, of Grant: Mr. Chairman, I move you, Sir, that
Ivan W. Goodner, of Huron, and Theron G. Brown, of Sioux Falls,
be employed as stenographers of this Convention, according to
the provisions made in the report of the Committee on Rules.

Mr. Hole, of Beadle: I second the motion.

The President of the Convention: It is moved that Ivan W.
Goodner, of Huron, and Theron G. Brown, of Sioux Falls, be
employed as stenographers of this Convention. Is the Convention
ready for the question? Those of the opinion that the motion
prevail will say aye; those of the contrary opinion will say no.
The ayes have it and Mr. Goodner and Mr. Brown are elected the
Stenographers of this Convention.

Mr. Cal dwell, of Minnehaha: Mr. President; it is desired by
the parties having charge of the printing of the Convention that
the Convention will indicate the probable number of finished copies
of the Journal they will have printed. It is necessary that the
type set for the Daily Journal shall be so arranged as to make a
complete book, when it shall be printed day by day, and this
Journal — the completed Journal, as I understand it, is furnished
from the appropriation which has been made for the expenses of
the Convention, and it is desirable that there shall be at once an
indication as to how many copies will be needed.

The President of the Convention: If the gentleman makes
no motion, there is nothing before the Convention.

Mr. Caldwell, of Minnehaha: I desire that someone who has
better ideas in regard to this than I have should make this motion.
I merely ask on behalf of the Secretary of the Territory and on

NUMBER OF JOURNALS 37

behalf of the printers of the Journal that there shall be an indi-
cation as to this matter.

Mr. Neill, of Grant: Mr. President, I move you, Sir, that
there be 500 bound copies printed of the Journal.

Mr. Caldwell, of Minnehaha: I doubt, if it be the object of
the gentleman to furnish them for the use of the Convention —

Mr. Neill, of Grant: Yes, Sir.

The President of the Convention: Is the Convention ready
for the question? I would suggest that this had better go to a
committee, from the fact that we only have a limited amount of
money. As I understand we are restricted in the amount which
shall be used for the printing.

Mr. Caldwell, of Minnehaha: Yes, Mr. President, that is so.
There is only $3750 for the two Conventions, as I remember the
amount.

Mr. Davies, of Edmunds: Mr President, I move as an
amendment that this be referred to the Committee on Printing.

The amendment received a second.

The President of the Convention: Is the Convention ready
for the question?

•Mr. Caldwell, of Minnehaha: Mr. President, it is very neces-
sary that this matter be determined at a very early time, because
the accumulation of type for the Daily Journal saps the facilities
of the printing institution so that it is necessary that it be determined
very soon.

Mr. Wescott, of Deuel: Mr. Chairman, I move as an amend-
ment that it be fixed at 300 instead of 500.

The President of the Convention: The question is upon the
motion to refer to the Committee on Printing. The motion pre-
vailed and the subject was referred to the Committee on Printing.

Mr. Jolley, of Clay: Mr. President, I move you, Sir, that
300 copies of the rules that have just been adopted be printed for
the use of the members of the Convention.

Mr. Kellam, of Brule: I move as an amendment to ma!
150.

Mr. Jolley, of Clay: Mr. President, all I have to say is this:
The reason why the Committee lias been twenty-four hours in
report ing is from tin- faet that \ve have hunted from one end of
the Territory to the other so as to find the printed rules and not
make it necessary for us to write them out.

38 SOUTH DAKOTA DEBATES 1889

A Delegate: Mr. Chairman, I wou'd favor the amendment
that 150 be the number. It sounds better anyhow.

The President of the Convention: The question is upon the
amendment by the gentleman from Brule that the number be fixed
at 150. Is the Convention ready for the question?

Mr.- Caldwell, of Minnehaha: Mr. President; of course the
report of this Committee will go in the Journal and there are suf-
ficient numbers of the Journal to furnish to members the text of
this report ; and it seems to me it would be a wise thing to either
dismiss the text of this report from the Journal or else vote down
a proposition to print the report separately.

The President of the Convention: The question is on the
amendment of the gentleman from Brule that the number be fixed
at 150. Those of the opinion that this motion prevail will say
aye; those of the contrary opinion say no. The ayes appear to
have it. The ayes have it.

(Crie.s of "Division, division".)

The President of the Convention: It is moved that 300 copies
of the Rules be printed for the Use of the Convention alone; and
to that motion Mr. Kellam, of Brule, proposes an amendment that
only 150 copies be printed for the use of the Convention, and it
is upon the adoption of that amendment that the Convention is
called upon now to act. Now, as many as are in favor of the
amendment that only 150 copies be printed, rise and stand to be
counted ; those of the contrary opinion rise and stand to be counted.
There are 49 ayes and 22 noes, so that the amendment is adopted.
The question now recurs upon the original motion as amended,
that is, that 150 copies of the Rules be printed for the use of the
Convention.

Mr. Harris, of Yankton: Mr. President, I move an amend-
ment by inserting after the word "Rules of the Convention", the
words, "and list of the standing committees."

A Delegate: I second the amendment.

The President of the Convention: The question is upon the
motion that 150 copies of the Rules be printed. Mr. Harris, of
Yankton, moves an amendment that —

A Delegate: Mr. President, I move as a substitute that there
be printed of the regular Journal instead of these 150 extra copies
of the rules, 300 copies of that Journal giving the rules and the names
of the committees.

RULES 39

The President of the Convention: It is suggested to me that
under one of the rules this is not in order, but I will not raise it
if it is not raised by anyone.

Mr. Kellam, of Brule: Mr. President, I do not care about
this, but the names of the members of the committees will not
appear on the Journal that contains the report. I understood
the motion of Mr. Harris to be that this same copy of the Rules
should contain the names of the standing committees. That is
the only information we care about. We don't care what standing
committees there are, but we want to know what members are on
the several committees, so that this motion will not meet the end.
The standing committees are not yet announced, and the Journal
of today will give us no information upon that subject.

The President of the Convention: It is moved that 150 copies
of the Rules be printed for the use of the Convention. Mr. Harris
moves an amendment that the members of the committees, as I
understood — that is, the list of the standing committees, should
be printed at the same time. It is moved as a substitute that
this all be printed in the Journal of today. In other words, if I
understand the question, it is that no extra copies of the rules be
printed, and no extra copies of the list of standing committees
be printed except that contained in the Journal of today, and that
300 copies of the Journal of today be printed.

Mr. Peck, of Hamlin: Mr. President, I fail to understand
how we are going to get a list of the names of the members of the
committees today, inasmuch as they will not be named by yourself.
I fancy we can get enough if we can get 300 copies of the Journal
of today and of the Journal upon the day after the names are an-
nounced.

Mr. Caldwell, of Minnehaha: The amount for the printing
is S3, 750 for the two Conventions as I am 'informed by Secretary
Richardson, and it will probably be necessary to economize some-
what in the matter of printing, and the motion which has been
offered as a substitute is a step in that direction, and 1 therefore
hope that it will be adopted.

The President of the Convention: I will state the question
again; it is in effect that no rules and no list of the standing com-
mittees be printed except as they occur in the Journal of toe lav,
and that 300 copies be printed.

Is the Convention rea-ly for the question? Those of the

40 SOUTH DAKOTA DEBATES 1889

opinion that the motion prevail will say aye ; those of the contrary
opinion say no. The ayes appear to have it. The ayes have it.

I was in hopes that some member would suggest to the Con-
vention, that it would be perfectly impossible to carry out that
order. I cannot announce those committees today.

Mr. Dickinson, of Day: It was not my idea that the names
of the committees be published but simply the list of the committees ;
but whenever the committees are named they will also appear,
and we can have 300 copies of the Journal of that day with the
names of the members.

Mr. Humphrey, of Faulk: I move that the President of this
Convention be instructed to inform the Constitutional Convention
of North Dakota by telegraph that the Constitutional Convention
of South Dakota has provided for a joint commission of seven
to agree upon an equitable division of all property belonging to
the Territory of Dakota, the disposition of all public records,
and to adjust and agree upon the amount of debts and liabilities
of the Territory, and request that a like commission be appointed
by the Constitutional Convention of North Dakota.

A Delegate: I second the motion.

The President of the Convention: It is moved that the Presi-
dent of the Convention, by telegram, inform the Constitutional
Convention at Bismarck of the action of this Convention with ref-
erence to the joint commission.

Mr. Neill, of Grant: Mr. President, I believe we gave our
committee authority to act on that subject. If that is not the
understanding that the committee has we simply wish to know it.
I do not wish to take any action here that would be discourteous
to that Committee.

Mr. Humphrey, of Faulk: Mr. President; the motion finally
referred to the Committee on Rules was to the effect that a special
committee be appointed to communicate with North Dakota and
ask them how many they wanted on the commission and when
they should meet. The Committee thought it would be hardly
proper — we thought it would be more compatible with the dignity
of South Dakota that the President of this Convention should
notify them, instead of the Committee on Rules.

Mr. Wood, of Pennington: Mr. President ; in that we assume or
arrogate to ourselves the right to direct North Dakota to appoint
the same number that we have, seven. Now, we get the righi to

JOINT COMMISSION 41

appoint this commission from the same source that they do. With
that exception I think the motion is all right. It would be better
for us not to put this motion in this form, I think. We ought not
to suggest to North Dakota what to do at all. The law is in op-
eration there as well as here. I move to amend by striking out
that portion of the motion requesting them to appoint a like com-
mission consisting of a like number.

A Delegate: I second the motion.

Mr. Humphrey, of Faulk: Mr. President, I accept the amend-
ment.

The President of the Convention: Do I understand the
gentleman to accept the amendment in full or only so far as the
number is concerned.

Mr. Wood of Pennington: I think it was accepted only so
far as the number is concerned.

The President of the Convention: It is moved by Mr. Humph-
rey, of Faulk, that the President of the Convention be instructed
to notify the Constitutional Convention of North Dakota, by tel-
egraph, that the Constitutional Convention of South Dakota
had provided for a joint commission of seven, and that they be
requested to appoint a like number 10 confer with them. To this
Mr. Wood, of Pennington, moves an amendment that all that part
of the resolution requesting the Constitutional Convention of
North Dakota to appoint a like number be stricken out.

Mr. Humphrey, of Faulk: I accept the amendment with the
consent of my second.

The President of the Convention: Is the Convention ready
for the question?

A Delegate: I accept the amendment.

The President of the Convention: The question then recurs
upon the original proposition that the President of this Convention
notify the Constitutional Convention at Bismarck, by telegram,
that this Convention lias adopted a resolution providing for tilt-
appointment of a joint commission of seven to assemble at Bismarek.
As many as are of the opinion that this motion prevail will say
as manv as are of the eont rary 'opinion say no. The ayes
appear to have it. The ayes have it.

Mr. Voting, nf Lake: Mr. President, it is very evidei:
the majority of the members here that \ve are lal-orin^ under very
serious ineonvenienee from lack of eopies of the Omnibus Hill and

42 SOUTH DAKOTA DEBATES 1889

of the Constitution. I will, therefore, move you that 100 copies
of the Omnibus Bill be requested of the Secretary of the Interior
of the United States, and that 100 accurate copies of the engrossed
copy of the Sioux Falls Constitution be furnished for the use of
the members of this Convention.

Mr. Price, of Hyde: Mr. Chairman, I move to lay that motion
upon the table. This Omnibus Bill has been printed by the
Argus-Leader, and numerous other papers in the Territory, and
it would take until after this Convention has adjourned before we
could get it anyhow.

Mr. Lee, of Spink: Mr. Chairman, I think that is very wise.
Most of us have brought it with us anyway.

Mr. Young, of Lake: Mr. President; there seems to be some
question about the legitimacy of the form of the motion; but its
importance is such that if it cannot be disposed of finally at this
time I would ask the unanimous consent of the Convention to
withdraw it until Monday, and then put it in such a form that it
can go through.

The President of the Convention: The Chair hears no objec-
tion and consent is given.

What is the further pleasure of the Convention?

A Delegate: Mr. President, I move that we now adjourn
until Monday at two o'clock.

A Delegate: I second the motion.

The President of the Convention: It has been moved that
the Convention do% now adjourn until Monday at two o'clock.
Those of the opinion that the motion prevail will say aye; those
qf the contrary opinion say no.

The ayes have it, and the Convention stands adjourned until
Monday next at two o'clock P. M.

ADJOURNED.

FIFTH DAY.

Sioux Falls, Dakota, July 8th, 1889.

Two o'clock P. M.

The Convention assembled pursuant to adjournment.

Prayer was offered by the Chaplain as follows:

Oh Thou God of hosts, we thank Thee for the privilege we
enjoy of life, liberty, and the pursuit of happiness; and we would
ask Thee that Thou wilt help us, that we so conduct the affairs
that are placed in our hands, that the world shall be better that
we have lived therein. These favors we ask, and Thy continued
favor, in Jesus' name,

AMEN.

After the reading of the Journal had proceeded some little
time Mr. Caldwell moved that further reading of the Journal be
dispensed with.

Which motion prevailed.

Mr. Kellam: As I remember the motion of Mr. Jolley, (of
Clay) for printing three hundred copies of the rules was disposed
of; I understood that. there was an amendment, or substitute car-
ried?

Mr. Caldwell: There are several of the members, (myself
among the number) who have not yet received today's Journal
at the desk.

Voices from different parts of the house: "None here".

Mr. Dickinson: The mover of that substitute as given by
the Journal, is a name I do not recognize as a member of this
Convention. It should read Dickinson, — not Harris.

The President: The Clerk will note the correction.

Mr. Caldwell: I believe it is the ordinary practice, and would
certainly be well in this instance at least, in order to prevent in-
cumbering the Joiirnal, with motions which may be made and not
carried, that such motions shall not be entered upon the minutes;

44 SOUTH DAKOTA DEBATES 1889

unless the motion made has reference to a subsequent action.
Where a motion is merely made and not carried, I suggest that
they be omitted from the records.

The President: You now move that hereafter the Clerk be
required to omit from the Journal, the motions that are made and
lost, that they do not really become the proceedings of the body;
would not it be well to refer that to the Committee on Rules.

Mr. Caldwell: I was suggesting merely, parlimentary practice
of deliberative bodies, without any rules.

The President: The next order of business is communications
and presentations of petitions.

Mr. Caldwell: If it will be in order to make a verbal com-
munication under this order of business I would, on behalf of the
Commissioner of Immigration of the Territory, state. that he has
forwarded to me several copies of a map of North Dakota, and
also maps of South Dakota for distribution to the members; and
likewise copies of these hangers (Indicating.) These are from
his office and there is one for each member of the body; and also
the Secretary has forwarded to me a copy for each member of
Long's Legislative Handbook, containing a copy of the Sioux
Falls Constitution and a large amount of statistics which will be
desirable for this body to have, and that he requested me to have
them distributed.

Mr. President: Under the order of unfinished business of
the preceding day, I will state to the Convention that I have not
been able to complete, — fully complete the list of the committees ;
I will have it tomorrow at the session of the Convention. I can
only announce the committee that will goto Bismarck. The com-
mittee forming a part of the joint commission to proceed to Bis-
marck under the Omnibus Bill, is Mr. Kellam, of Brule; Mr. McGil-
licuddy, of Pennington; Mr. Neill, of Grant; Mr. Caldwell, of Min-
nehaha; Mr. Elliott, of Turner; Mr. Price, of Hyde; and Mr. Brott,
of Brown.

Mr. Coats: My business was such that it was impossible
for me to be present at the first two days' meeting of this Con-
vention; I shall be obliged to ask to be excused and have it so ap-
pear upon the record.

The President: If there is no objection, it will be so ordered.
The Chair hears no objection ; it is so ordered.

CONSTITUTION OF 1885 45

The President: The Chair appoints Charles C. Walts and
A1bert J. Keith, as Pages.

Mr. Jolley: I make the report verbally that the Committee
on Rules, ask that Rule 43, page 4, as published in these proceed-
ings, be amended by striking out the words "two pages" and in-
serting in lieu thereof, the words "three pages". The Committee
arrived at this conclusion for this reason to give a page to this side
of the hall and an extra Page for the presiding officer of this Con-
vention, and the officers. 1 move you that the words "two Pages",
in line four, of Rule Forty-three, be stricken out and insert in lieu
thereof, the words "three Pages".

Which motion prevailed, and the Rule was declared so amended.

Mr. Price: The members on this side of the hall have not
been furnished copies of the Journal.

The President: Only a few copies have been received from
the printers.

Mr. Price: It is a small matter, but the Journal reads in line
31, page 9, that Mr. Coats moved the motion with relation to pro-
curing 100 copies of the Omnibus Bill, be tabled ; that should appear
Mr. Price, instead of Mr. Coats.

The Presdient The Clerk will make the necessary change.

Mr. Caldwell: I would ask if there has been any direction
yet to the Commission to go to Bismarck, as to the time it shall go.

The President: I sent the communication ordered by the
Convention, on Saturday, to the President of the Constitutional
Convention at Bismarck ; it probably went so late that he did not
receive it until after the adjournment of the Convention on Satur-
day; I have received no answer as yet.

Mr Young: As we are forming a document here, the import-
ance of which is so great that it is absolutely necessary that it be
correct in every detail, and although I do not know as to the quality
of the copy in Long's Legislative Manual, I do know that these
copies that have been distributed by the Central Committee and
the copy in the Argus-Leader are different, greatly; I notice in
Section Five, of Article Eight, that there is a discrepancy in regard
to three words in one section ; now I do not think that such copies
are right copies to have as a basis of our work, therefore, I re-
submit the following resolution:

RESOLVED, That a committee of five In- appointed whose duly
it shall be to procure from the President the original and authentic

46 SOUTH DAKOTA DEBATES 1889

engrossed and certified copy of the Constitution, and procure the
same to be carefully and correctly copied, and to have the same
carefully and correctly printed under their supervision and laid
upon the desks of the members, and the same committee be in-
structed to procure and place upon the tables of the members
carefully and correctly printed copies of the Enabling Act, under
which this Convention has assembled; the same committee be also
instructed to procure from H. M. Avery, the assistant secretary
of the last Convention, the engrossed copy of the Constitution in
his possession, and that the same committee be instrticted to care-
fully compare said copies with a view to the correction of any
mistakes.

Mr. Young: I move the adoption of that resolution.

Mr. Dickenson: I second the motion.

The President: Do you mean the engrossed copy or the en-
rolled copy? Under the authority of the last Convention it was
committed to my custody and has remained there until today.

Mr. Young: I was instructed there were two copies; one in
your possession and one in the possession of Mr. H. M. Avery.

The President: I cannot tell what Mr. Avery has; I have
the original copy; the only copy that can be authority anywhere;
that was committed to me by the Convention, and ordered by the
Convention to be kept by me, until it was deposited with the Sec-
retary of State of the state to be. My intention was to present
that at some proper time to this Convention, as I believe now it
belongs to and should be the property of this Convention. As I
said before, the original enrolled bill, I have just as signed by the
members of that Constitutional Convention. I only make this
suggestion for the information of the members of the Convention.

Mr. Peck: Not having been furnished the Journal of Satur-
day, in which the several committees were named, I have no way
of knowing whether a committee was appointed on Constitution;
I presume in that connection that the Committee is to correct that
Constitution; we have parted with our rights as a Convention to
correct that Constitution except through that Committee; and
we require of the Committee to get such information as will enable
them to give us a correct copy of the report.

Mr. Caldwell: It occurs to me that the necessities of the case
are scarcely sufficient to warrant the printing of another Consti-
tution. It seems to me that if the Chairman should have the
official copy of the Constitution it would be possible to thereby
indicate to this Convention the changes which the Committee

CERTIFIED COPY 1885 47

might deem to be necessary, by comparison with this copy of
Long's Legislative Handbook, — that the Convention would then
have in its possession, that which would enable it to understand
what it has got to do in the work before it. The time required to
print a sufficient number of copies from this enrolled copy of the
Constitution would be greater than the benefits to be derived from
it would amount to. I would therefore oppose the motion as it
is made.

Mr. Sterling: I simply wish to say that I agree with the
speaker last upon the floor in this respect. It seems to me that
with the official copy here, such as I understand the Chairman to
say he has, a comparison can be readily made with the copies that
we have at our desks ; it can be ascertained whether the copies are
true or not, while we have the original here and the time and ex-
pense would be both saved. I would oppose the resolution.

Mr. Young: It seems to me a misapprehension that some
are laboring under is this: The Committee will have this perfectly
correct copy to work with in making their reports; I would for
that reason supply them with copies that they might work with
uniformity, — so that the comparison might be made by one com-
mittee instead of every committee.

Mr. Peck: I have since my remarks been served with a copy
of the Rules; I find committee twenty-three are appointed for
revision and correction of the Constitution; I understand that
they have that in hand, and one copy will be quite sufficient for
seven men to make the correction from, I fancy.

The resolution reaching a vote of the Convention, was lost.

Mr. Dickenson: Referring to the top of the ninth page of the
Journal, Mr. Neill of Grant, moved that five hundred "bound"
copies of the Journal be printed instead of five hundred "extra"
copies. That motion was referred to the Committee on Printing.

The President: Mr. Dickenson asks that the Journal be cor-
rected by striking out the word "extra" and inserting the word
"bound".

Mr. Caldwell: With regard to this matter I would like to
urge the necessity of prompt action on the part of the Committee
on Printing in determining the number of bound volumes the Con-
vention will desire ; there are certain mechanical questions involved
as to the facilities for doing the printing, and if it is possible for

48 SOUTH DAKOTA DEBATES 1889

this Committee to determine pretty near about it, it will greatly
facilitate the matter of providing the Journal.

The President: It will be pretty difficult for the Committee
to act until they are appointed.

Mr. Caldwell: It WILL be pretty difficult! (Laughter.)

Mr. Neill: I think when it comes to be left to the Committee
on Printing, to determine the number of copies, that they will be
as much at 'sea as the Convention now is, in recommending the
number. This Convention might just as well settle the number
of copies at once, as to do it at a later date, and therefore to bring
this matter before the Convention and have it decided, I move
you that five hundred bound copies of the Journal be printed;
that is of the complete Journal.

Mr. Jolley: Can you entertain that motion while this matter
has already been sent to a Committee?

The President: Not if any objection is made.

The President: The Chair hears no objection.

Mr. Spopner: I rise to a point of order; it is not the proper
motion to submit ; there was a previous motion referring the matter
to the Committee on Printing.

The President: The gentleman from Kingsbury raises the
point of order that on Saturday some motion was before the Con-
vention and the Convention referred the matter to the Committee
on Printing; the Chair is of the opinion that the point of order is
well taken.

Mr. Caldwell: If it is not to be regarded as discourteous to
a committee not yet in existence (laughter) I would move that
the matter of bound copies, be withdrawn from the Committee on
Printing and again brought before the House, for consideration.

Mr. Peck: I will gladly second that if in order; can probably
facilitate the work of the Committee, if we can give them such
consideration.

Mr. Caldwell: It is suggested that it would make the Journal
in better form if the motion referring this to the Committee on
Printing, be reconsidered; I would by consent of the House, with-
draw the previous motion, substituting therefor, the motion to
reconsider the vote by which the subject of bound copies of the
Journal was referred to the Committee on Printing.

Which motion prevailed.

Mr. Neill: The motion I believe before the House, is the one

ROUTINE 49

made Saturday, that five hundred bound copies of the Journal be
printed for the use of the Convention; am I right?
The President: Yes, Sir.

Mr. Neill: Mr. President; my reason for making that the
number of bound copies is this: We will get five hundred about
as cheaply as we will get three hundred, because the greater part
of the expense in getting up a book of that kind comes in the first
three hundred or five hundred. Yet we do not wish to act with
extravagance that would require us to modify that order. I
think we should order the largest limit compatible with the needs,
and with the expenses that this Convention could well afford to
pay. I, for these reasons, move that we have five hundred copies
of the bound volume of the Journal. I do not think that three
hundred copies would be as satisfactory as five hundred ; it would
only make something like five or six to each of us.

Mr. Peck: I would second that if the mover would designate
his manner or recommendation of dividing those; how they will
be distributed.

The motion of Mr. Neill, (of Grant) prevailed.
Mr. Peck: I would make a resolution supporting the same
thing; that six copies be given to each member of this Convention,
and the balance remain in the Parlimentary Library for further use.
Mr. Caldwell seconded the motion.

Mr. Caldwell: I would suggest the correction of the motion
as I intended it; I didn't intend "Parlimentary Library".

Mr. Peck: That simply shows where I came from, that is
all. (Laughter.)

By rising vote the motion prevailed.

Mr. Goddard: It seems to be necessary for me to be absent
tomorrow; I ask to be excused.

Th'e President: If there is no objection, the member will
be excused tomorrow; the Chair hears no objection.

The President: I think I shall be able to announce the com-
mittees tomorrow at two o'clock; I had hoped to do it today. It
has been more difficult than I at first supposed possible to enter-
tain all the conflicting interests and claims of members and local-
ities; therefore, I have to claim the indulgence of the Convention
for another day.

SO SOUTH DAKOTA DEBATES, 1889.

Mr. Price: I move we do now adjourn until tomorrow at
two o'clock.

Which motion prevailed.

The President: I announce the name of Frank E. Clough, as
the third Page of this Convention.

SIXTH DAY.

Sioux Falls, Dakota, Tuesday, July 9th, 1889.

Two o'clock P. M.

Convention called to order by the President, in the chair.

Prayer by the Chaplain as follows:

O God, our Heavenly Father, we ask Thee that Thou wilt be
with us individually ; that our every act may be such as to meet
the approval of all the others in this Convention, and may we as a
whole so administer the affairs placed in our hands as to meet with
Divine approval; and may we in voicing the sentiments of the
people that have sent us, also voice the will of God. In Jesus'
name we ask it,

AMEN.

Reading of the Journal of yesterday.

The President of the Convention: Are there any corrections
of the Journal?

Mr. Clough, of Codington: Mr. President; ought it not to be
the fifth instead of the fourth day? I ask the question for in-
formation.

The President of the Convention: I don't know myself what
the rule is in making up a Journal. I never made up a Journal,
but the rule for conventions and legislatures is that they count
from the first day to the last, including Sundays.

Mr. Caldwell: Mr. President, I would say that it is the prac
tice, so far as the Territory is concerned, to skip Sunday and to
make the Journal show the number of days of the session so that
yesterday would have been the fifth day.

Mr. Clough, of Codington: I move, Mr. President, that it
be changed to the 5th day instead of the 4th.

The President of the Convention: If there is no objection,
it will be so ordered, and the Clerk is ordered to make the correction.

Mr. Neill, of Grant: In the minutes of yesterday there is
a mistake in the name of Neill —

52 SOUTH DAKOTA DEBATES 1889

A Delegate: On the second1 page, third line, in agreement
with the suggestion of the gentleman from Clay, made a few days
ago, in favor of not cumbering our records and of having them
accurate I think they ought to change the words "two Pages"
to the word "two" and the words "three Pages ' to "three", in
the interests of accuracy.

Mr. Jolley, of Clay: If the gentleman will read on further
be will find the words "two dollars" also, and he will discover that
it is necessary that this be left as it is, in order to prevent mis-
understanding.

The President of the Convention: I would say that I think
the Clerk has recorded the motion as the Chairman of the Committee
on Rules made it. If it is a mistake, it is a mistake of the Conven-
tion in passing the resolution of the Chairman of the Committee
on Rules.

Mr. Jolley, of Clay: There is no mistake made, either by the
Chairman of the Committee or by the Convention, your honor —
Mr. President, I mean — I thought I was trying a case before your
honor! (Laughter.) If the word changed was simply the word
"two" we wouldn't know whether it was the words "two dollars"
or "two Pages". The Committee instructed me to insert the words
"two Pages".

The President of the Convention: I suggested that if there
was any mistake it was the mistake of the Committee and of the
Convention, and not of the Clerk.

Mr. Cal dwell, of Minnehaha: Mr. President, as this Journal
is making history, and as those connected with it would like to be
right, I would say that it is H. M. Avery instead of H. A. Avery.

I believe also that it is the custom of the Clerk to sign each
day's proceedings and have it appear upon the Journal.

The President of the Convention: If that is the rule then it
is my mistake. It is one continuous session; I never saw it so in
my life. The Convention will probably adopt the recommendation
of the Committee on Rules in that respect. I would suggest here-
after that any mere clerical error of that kind be suggested to the
Clerk, and he make the entry, as he will at once, on the Journal.
It is not necessary to take either the time of the Convention nor
to encumber the record; a clerical mistake of that kind will be

THE MENNONITES S3

corrected at once by the clerk.

Mr. Atkinson, of Brookings: Mr. President, I would inquire
if it is the intention to have the word "Territorial Library" here,
or "State Library", at the bottom of the page. The point is
whether we intended to have it in that way we have it here. The
motion was that they should be deposited in the "Parlimentary
Library", and that was corrected and made State Library.

Mr. Peck, of Hamlin: You simply did not adopt my sug-
gestion and got it worse, that's all! (Laughter.)

The Presdient of the Convention: I will now submit the list
of Committees. Perhaps I should say to the Convention that I
have no hope — no expectation that the committees will suit every
member of the Convention. It has been rather of a laborious
duty to have all the different locations satisfied and to have the
different interests in the Convention made content ; and it has
been impossible to so make up the list that everyone would be
satisfied. The Clerk will read the list of committees.

(The Chief Clerk here read the appointment of committees.)

The President of the Convention: What is the further pleas-
ure of the Convention?

Mr. Williams, of Bon Homme: Mr. Chairman, if it is in order
at this time, I have a petition I would like to present. This peti-
tion comes from a religious society in Bon Homme County, setting
forth their views as belonging to what is known as the non-resistant
sect — setting forth their privations in Russia, their sacrifices in
property, and their emigration to America, and asking that this
Convention incorporate into the Constitution an exemption from
military duty; which resolution I move be received and referred
by the President to the appropriate committee.

The President of the Convention: It will be so ordered unless
objection is made. Have you any suggestion as to the committee?

Mr. Williams, of Bon Homme: Mr. President, I think it
would be proper to refer it to a committee on military.

Mr. Kellam, of Brule: Mr. President, if in order at this time
I desire to present a resolution and move its adoption. Perhaps
I can read it more readily than the Clerk:

WHEREAS, By resolution of this Convention authorizing the
same, the president of this Convention has named and appointed
as the members of the joint commission on the part of South Dakota
to agree upon an equitable division of the property belonging to
the Territory of Dakota, the disposition of all public records, and

54 SOUTH DAKOTA DEBATES 1889

adjust and agree upon the amount of debts and liabilities of the
Territory, which should be assumed and paid by each of the States
of North Dakota and South Dakota, the following named members
of the Convention, to-wit: A. G. Kellam, V. T, McGillicuddy,
Henry Neill, E. W. Caldwell, William Elliott, C.. H. Price, S; F.
Brott. Now be it

RESOLVED, That the aforesaid appointment by the President
be, and the same is, by this Convention hereby adopted and in all
things confirmed.

Mr. President, I move the adoption of the resolution.

Mr. Hole, of Beadle: Mr. President, I second the motion.

The President of the Convention: The question, is upon the
adoption of the resolution just made by Mr. Kellam, of Brule, is
the Convention ready for the question? Those of the opinion that
the resolution be adopted will say aye ; those of the contrary, opin-
ion say 'no. The ayes have it and the resolution is adopted.

Mr. Cldugh, of Codington: Mr. Chairman, if it is in order I
move that the motion requiring the Secretary to furnish 200 copies
of the daily minutes be reconsidered, and that 500 be ordered
printed.

Mr. Lee, of Spink: Mr. Chairman, I second the motion.

The President of the Convention: I would suggest to the
gentleman from Codington that possibly, the motion to reconsider
be first made.

Mr. Clough, of Codington: I move to reconsider the motion.
The reason is that newspapers all about are asking for copies. .

A Delegate: I second the motion.

The President of the Convention: It has been moved and
seconded to reconsider the motion requiring the Secretary to fur-
nish 200 copies daily of the Journal. Is the Convention ready
for the question?

Mr. Price, of Hyde: Mr. President, I am in favor of that
motion, but I move an amendment that the Chief Clerk be instructed
to lay upon the desk of each member a certain number of copies
each morning.

The President of the Convention: Is the Convention ready
for the question?

Mr. Caldwell, of Minnehaha: Mr. President, I rise ,to the
point of order that more than two days have elapsed since the
motion was made, and it cannot be reconsidered.

ROUTINE 55

Mr. Jolley, of Clay; Mr. President, the rules require that two
business days — yesterday was Monday and this is Tuesday.

Mr. Caldwell,, of Minnehaha: Mr. President, I sit down!
(Laughter.)

Mr. Wescott, of Deuel: Mr. Chairman; is is not possible that
having ordered 200 on the previous day, we can order 200 more
today.

The President of the Convention: The question is upon the
motion to reconsider. Is the Convention ready for the .question?
Those of the opinion that the motion prevail will say aye ; those
of the contrary opinion will say no. The ayes have it and the
motion prevails.

Mr. Clough, of Codington: Mr. Chairman, I move that the
Chairman of the Committee on Printing be directed to secure 500
copies and that six copies' be laid on the desk of each member.

Mr. Atkinson, pf Brookings: Mr. President, I move an amend-
ment to the motion by making it the duty of the Messenger to do
this distributing. (Great Laughter.)

Mr. Wood, of Pennington: Mr. President, it seems- to me
that the motion ought to provide for their being delivered before
the session each day,

Mr. Clough, of Codington: I accept the amendment.

The President of the Convention: Is the Convention ready
for the question? As many as are of the opinion that the motion
be so amended say aye; those to the contrary say no. The ayes
have it.

As many .as are of the opinion that the motion prevail, as
amended, say aye; those of the contrary opinion say no. The
ayes have it and the motion prevails.

Mr. Zitka, of Bon Homme: Mr/President, I move you that
the Constitution of 1885 be ordered read in this Convention to-
morrow for the purpose that the different portions thereof may
be referred to the appropriate committees.

A Delegate: Mr. President, I second the motion.

The President of the Convention: It has been moved that
the Constitution of 1885 be read in this Convention tomorrow in
order that the different portions thereof may be referred to the
appropriate committees. 'Is the Convention ready for the question?
As many as are of the opinion that the motion prevail, will say

56 SOUTH DAKOTA DEBATES 1889

aye; those of the contrary opinion say no. The ayes have it.
The motion prevails.

Mr. Caldwell, of Minnehaha: Mr. President, this was done
in order that it might be referred to the appropriate committees-
Mr. Neill, of Grant: Mr. President, I ask the unanimous
consent of the House to present the following resolution and press
its action at the present time, to avoid the necessity of sending
it to the Committee: Resolved that R'lle 33 be amended by
adding thereto the words "and no such motions and resolutions
shall be printed in the Journal". If the House would like, I will
explain the reason for the motion,- — and I move that the resolution
be adopted.

The President of the Convention: Unless otherwise ordered
this will go to the Committee on Rules.

Mr. Jolley, of Clay: Mr. President, I would like to read Rule
33: "All motions and resolutions not pertaining to the current
business of the Convention, shall be, upon being read, referred by
the President to the appropriate committee without debate."

Mr. Neill, of Grant: Mr. President, I move you, Sir, that the
House give consent to the present consideration of this motion.

A Voice: Mr. President, I second the motion.

The President of the Convention: It is moved that the rules
be suspended in order that the House may consider the resolution.
Those of the opinion that the motion prevail will say aye; thosft
of the contrary opinion will say no. The noes have it. The
motion is lost and the resolution is referred to the Committee on
Rules.

Mr. McGillicuddy, of Pennington: Mr. President, I have a reso-
lution which I will send to the Clerk's desk for reading.

(The Chief Clerk read the resolution, which was to the effect
in substance, that a committee of five be appointed whose duty
it should be to communicate with President Harrison, requesting
him to suspend action on all questions being considered by the
Interior Department relating to the establishment of mineral
claims on school lands in Dakota until North and South Dakota
were admitted to statehood.)

The President of the Convention: The resolution is referred
to the Committee on School Lands.

Mr. Clough, of Codington: Mr. President, I hold in my hand
a letter, and hanging upon the Stenographers' desk is a seal from

STATE DEBT 57

Mr. John Banvard, of Watertown. I move you, Sir, that it be
referred to the Committee on Seal.

The President of the Convention: If there is no objection
they will go to the Committee on Seal.

Mr. Price, of Hyde: Mr. President ; Delegate Jeffries, of Clark
County, was unexpectedly called home after the session of the
Convention yesterday, and he desires to be excused by the Con-
vention until next Monday.

The President of the Convention: If there is no objection
he will be excused. The Chair hears no objection.

Mr. Anderson, of Hand: Mr. President; the nature of my
private business is such that it will be necessary for me to be
absent from the Convention about two days, and I ask leave of
absence for Wednesday and Thursday.

The President of the Convention: If there is no objection
you will be excused.

Mr. Neill, of Grant: Mr. President, I move you that the
President of this Convention be empowered to excuse members
of this Convention for three days, without reference to a committee.

The President of the Convention: The resolution is referred
to the Committee on Rules.

Mr. Neill, of Grant: Mr. President, I offer the following
resolution: Resolved, that the Committee on Schedule provide
for the election of clerks of the court in the settled counties of the
state.

The President of the Convention: Referred to the Committee
on Schedule.

Mr. Corson, of Lawrence: Mr. President, I desire to present
a resolution to the Convention, and ask its reference to the Com-
mittee on Public Accounts and Expenditures.

(The resolution was read by the Chief Clerk and was in sub-
stance that the indebtedness of South Dakota assumed from the
Territory in becoming a state be not included in the limit of $500-
000; that this limitation be denned in the Constitution so as to
state that the indebtedness of the State, created by the State,
shall not at any time exceed $500,000; that the inheritance of
South Dakota's share of the Territorial indebtedness is not PER
SE a state debt.

The President of the Convention: Referred to the Committee
on State, County and Municipal Indebtedness.

58 SOUTH DAKOTA DEBATES 1889

Mr. Smith of Charles Mix:' Mr. President, I would ask to
be excused from this Convention for tomorrow.

The President of the Convention: If there is no objection
it is so ordered.-

The President of the Convention: What is the further pleas-
ure of the Convention?

Mr. Lee, of Spink: Mr. President, if there is no objection I
should be glad to occupy about a minute asking a personal favor.

The President 'of the Convention: Proceed, if there is no
objection;

Mr. Lee, of Spink: Mr. President and Gentlemen 'of this
Convention: When I ca-rrie 'to Dakota I retired to private life;
I am here prepared, however, doing the best I can, practicing for
the purpose of manufacturing and making a speech or lecture or
whatever you may call it — not to run for any" office or to make
any money, but to do a little good. T should like to deliver the
lecture here in this 'hall. I have been asked to several times by
the 'church people. 'I want especially ' Mr. Caldwell to come. I
would like to have you all come, not that I expect to: play Henry
Clay or Daniel Webster, but because with my hand lifted toward
Heaven I want to do good. : I hope the members will listen to the
announcement, and give Father Lee one more chance. My text
will be "The Fatherhood of God, the Brotherhood of Man, and the
Good of Prohibition Generally." (Great applause.)

The President of the Convention: The Clerk suggests that
if the delegates will leave their names on the blotter or upon a
piece of paper upon their desks, he will have them printed and placed
on the desks so that everyone will know the seat.

Mr. Neill, of Grant: Mr. President, the committee appointed
to go to Bismarck would like to ask of this' Convention whether it
would be willing to grant them one of the official stenographers,
if they deem it necessary that they have one of them. We think
perhaps that the labors of this Convention 'as a whole will not be
very cumbersome, as it will be mostly committee work, and one
of the official stenographers will perhaps be enough to leave "be-
hind, and the other might be a great convenience and an accom-
odation to us; and if we should deem it necessary to have him,
we would like that the President of this Convention be authorized
to grant him that leave of absence to accompany us.

Mr. Atkinson, of Brookings: Mr. President, I understood the

STENOGRAPHER TO JOINT COMMISSION 59

arrangement of this Committee was that they -had the power to
employ such help as they need. It occurs to me that if they need
a stenographer that they ought, in this great Territory, to be able
to secure one without taking our stenographers away from us. It
would not be only a hardship for us to lose them, but it would be
an additional expense to take one from here, for there is not only
his mileage and expenses on the road, but it would consume sev-
eral days on the road. They certainly can find some talent in the
great Territory of Dakota at that time.

Mr. Neill, of Grant: Mr. President, it was a matter of economy
with us, and in order not to hire an additional stenographer, because
the pay of this one is going on while he is here; and also the fact
that it is impossible to secure a stenographer at Bismarck. Governor
Mellette has to come to Watertown to get one, otherwise to St.
Paul or Minneapolis.

Mr. Ringsrud, of Union: Mr. President, I move you that the
President of this Convention be authorized to designate one of
the official stenographers of this Convention to accompany the
Commission to Bismarck.

A Delegate: I second the motion.

The President of the Convention: It has been moved that
the President of the Convention shall designate one of the official
stenographers to accompany the Joint Commission to Bismarck.
Is the Convention ready for the question? Those of the opinion
that the motion prevail will say aye ; those of the contrary opinion
say no. The ayes have it and the motion prevails.

Mr. Zitka, of Bon Homme: Mr. President, I move that the
Convention do now adjourn.

Mr. Van Buskir-k, of Codington: Mr. President, I would like
to be excused for two days. Our term of court is in session and
I have been telegraphed to come there.

The President of the Convention: It is so ordered unless
objection is made.

Mr. Caldwell, of Minnehaha: It is desired by several of the
members to meet Mr. Hubbard, the financial head of this institu-
tion; and if he is now present I would like that he be presented,
in case any of the gentlemen desire to fix up their finances.

The President of the Convention: It has been moved that
the Convention do now adjourn. Those of the opinion that the
motion prevail will say aye; those of the contrary opinion say no.

60 SOUTH DAKOTA DEBATES 1889

The ayes have it and the Convention stands adjourned until
tomorrow at two o'clock.

ADJOURNED.

SEVENTH DAY.

Sioux Falls, Dakota, July 10, 1889.

Two o'clock P. M.

Convention called to order by the President.

The Chaplain: Oh Lord, our God, Thou who art the Ruler
of the Universe, who are the God of nations, we thank Thee, that
Thou hast given us the privilege of taking a part in this the forma-
tion of a government that shall be worthy the name of the children
of a living God. We do ask Thee, that Thou wilt help each in-
dividual member of this Convention, that in our going out and
coming in before this people we shall reflect credit upon those who
have sent us here, and in the work that Thou hast intrusted to our
hands may we do great good for humanity ; in the name of Jesus
Christ we ask these favors,

AMEN.

The President: The suggestion that I made yesterday after-
noon I think will expedite matters somewhat and tend to stop
encumbering the record; that where the Journal shows a clerical
error only, for the delegates to call at the Clerk's desk afterwards
and it will be corrected without taking the time of the Convention
and without incumbering the records. If it is a substantial error
needing the attention of the Convention, it may be b.tter to call
the .attention of the Convention to it, but if a clerical error it can
be changed by the Clerk at the Clerk's desk at any time.

Mr. Price: I move that the reading of the Journal be dis-
pensed with.

Which motion prevailed by a rising vote of thirty ayes, to
nineteen nays.

Mr. Spooner: I desire to present a resolution for the purpose
of memorializing Congress upon the development of our artesian
system, and request that it be referred to the Committee on Federal
Relations and Internal Improvements.

62 SOUTH DAKOTA DEBATES 1889

Mr. Sterling: I ask for the reading of the resolution.

Thereupon the Clerk read as follows:

A Memorial to the Congress of the United States requesting
the appointment of a Commission for the purpose of making a
geological and hydrographic survey of the State:
To THE CONGRESS OF THE UNITED STATES:

The Constitutional Convention of the State of South Dakota
duly assembled, would respectfully represent to your honorable
bod'y that it has been demonstrated that within the limits of South
Dakota there exists what is known as an artesian basin or system,
but that its extent has not been fully determined. And that a
desire is being generally expressed by the people of South Dakota
that the matter be investigated and the extent of the system fully
determined and its availability for the purposes of agriculture and
manufactures be determined.

Now, therefore, the said Convention would respectfully memor-
ialize your honorable body and request you to appoint at the
earliest possible time a Commission for the purpose of making, and
with power to make, a thorough and complete geological and hydro-
graphic survey pf the State, including the mineralogical formation
of the Black Hills and the artesian basin of South Dakota, and
that you make the necessary appropriations therefor.

The President: It will be referred as requested.

Mr. Jolley: I have a report from the Committee on Rules; I
will read it.

Sioux Falls, Dakota, July 10, 1889.
MR. PRESIDENT:

Your Committee on Rules have instructed me to report that
they recommend that Rule 33 shall be amended to read as follows:

RULE 33. All motions and resolutions not pertaining to the
current business of the Convention, shall be, upon being read,
referred by the President to the appropriate committee without
debate, and such motion or resolution shall not be printed in the
Journal until reported from the committee.

And I am further instructed by the Committee on Rules to
report that they recommend an additional rule for the government
of this Convention, to-wit ;

RULE 45. That the President of this Convention is authorized
and empowered to grant leave of absence to any member of this
Convention for a period not to exceed three days.

JOHN L. JOLLEY,

Chairman.

Mr. Jolley: I move the report of the Committee on Rules
be adopted.

Which motion prevailed.

LOANING SCHOOL FUHDS 63

Mr. Caldwell: I would ask if this that has been just done
means an amendment to the Rules ?

The President: I understand it means an amendment of
the rules in this: One rule is amended and a new rule added.

Mr. Jolley: Rule 33 is amended, and Rule 45 is a new rule.

Mr. Caldwell: I believe it is required that for an amendment
of the Rules it is necessary that there be a two-thirds majority?

Mr. Jolley: The gentleman from Minnehaha is correct.

Mr. Caldwell: I raise the question that there is nothing but
a roll call or registering the vote would show a vote to be a two-
thirds majority. Where a special number of any deliberative
body is required in order to adopt any measure we must do -some-
thing which is documentary evidence of the fact that a sufficiency
is secured,

Mr. Jolley: If there is no individual objects and no ayes
and nays or division called for it is presumed that two-thirds are
voting in the affirmative on a measure under consideration.

The President: There is a rule which reads differently in
some of the states ; in some of the states the constitutional provision
is that in certain duties, it shall take two-thirds of all elected to
the office to constitute a quorum ; this is two-thirds of those present.
I apprehend the usual rule is, that all those that are voting are the
only ones considered voting, unless it lacks a quorum; and if all
vote aye, and none vote no, it does not need a roll call to decide
that two-thirds are voting aye. This will be the ruling of the Chair
unless the Convention orders otherwise.

Mr. Sterling: I have a resolution I desire to present.

WHEREAS: It is provided by Section 11 of Article VIII of
the Constitution that all moneys belonging to the school funds
may be under such restrictions as the Legislature may direct, be
loaned and

WHEREAS, Section IX of Article VIII of the Constitution pro-
vides no lands mentioned in this article shall be leased except for
pasturage and meadow purposes.

BE IT RESOLVED: That said Section IX of the Constitution
be so amended that said school lands may be leased for pasturage,
meadow and agricultural purposes.

The President : What committee do you ask its reference to ?

Mr. Sterling: The Committee on School Lands.

Mr. Price: I desire to present a resolution, and desire to have
it referred to the Committee on State Institutions; and here is
another I desire to go to the Legislative Committee.

64 SOUTH DAKOTA DEBATES 1889

The President: The Secretary will read for the information
of the Convention.

The Clerk: A proposition to amend Section III of Article III
of the constitution of 1885:

RESOLVED: That Section Three of Article Three of the Con-
stitution of 1885, be amended by striking out "who shall not have
attained the age of twenty-five years" where they appear in the
first and second clause of said Section Three.

The President: That is referred to the Legislative Committee.

The Clerk: Proposition to amend Section I of Article XIV:

RESOLVED: That the charitable and penal institutions of the
State of South Dakota shall consist of a penitentiary, insane hos-
pital, a school for the deaf and dumb, a school for the blind, a
school for feeble minded children, a reform school, and such other
charitable and penal institutions as may be provided by law.

The President: That is referred to the Committee on State
Institutions.

Mr. Clough: I offer the following resolution:

RESOLVED: That in all counties where no Auditors exist, one
shall be elected in conformity with the Constitution at the October
election.

The President: Referred to the Committee on Schedule.

Mr. Dickenson: Have we not a special order for today —
reading of the Constitution?

The President: The. Secretary will proceed to read the Con-
stitution under the order of the Convention, yesterday.

The Clerk: Article 1, Name and Boundary, —

Mr. Zitka: If the Convention wishes to signify certain por-
tions, I am willing.

The President : Do I understand that as the Clerk finishes
reading one section or article that he waits for the members of
the Convention to make any suggestions with reference to referring
such propositions to certain committees?

Mr. Zitka: I think that would be better; the Clerk will read,
and at the end of each article, wait just a moment.

Mr. Caldwell: I would suggest that the Constitution be read
merely by captions of the various articles; it would be sufficient
to indicate the proper committee to which the body of the article
be referred, as the purpose of this reading is merely for reference
by title it seems to me it will be accomplished faster ; I make that
motion, Mr. President.

Which motion was duly seconded.

REFERENCES TO COMMITTEE 65

Mr. Goddard: Have we any authority to copy anything that
we know is unreliable as the copy of the Constitutions are?

The President: I suppose if its accuracy is questioned it
will have to be compared with the official copy of the Constitution
which will probably reach here tonight. I shall place the other
at the disposal of the Chairman of the proper committee.

Mr. Lee: Would not it be wise to postpone this reading
until the other comes, and save reading it twice?

Mr. Cal dwell: However desirable it might be for general
purposes to have a correct copy of the Constitution, it can hardly
be regarded as necessary for the purposes for which the motion
is made, — which is merely that the various portions of the Con-
stitution may be referred to the proper committee.

The President: The motion before the Convention is that
the Constitution be read by separate articles so that the Conven-
tion may be informed that certain propositions may be referred
to proper committees; the gentleman from Minnehaha moves an
amendment, that instead of the articles being read, that the cap-
tions of each article be read for the information of the Convention;
it is upon the amendment the Convention will now act.

The amendment prevailed.

The President: The Secretary will proceed and read the cap-
tions of each article.

The Clerk: Article 1: Name and Boundary.

Mr. Caldwell: The reference will be made by the President
of the Convention without a formal motion from the body of the
House.

The President: What did I understand?

Mr. Caldwell: That the reference to the proper committee
will be made by the President of the Convention ; as the caption
of the article is read, the President will announce the Committee
to which it is referred. At least that is the ordinary practice.

The President: If it is the ordinary practice, it is where I
never have been; this is the Constitution that the people have
ratified. This does not have to be referred except as the committee
itself may act upon it. If it is a resolution that comes in, it may
be referred.

Mr. Caldwell: It was the purpose as stated by the gentleman
who made the motion and by the gentleman who moved the amend-

66 SOUTH DAKOTA DEBATES, 1889.

ment, that it be read merely for the purpose of dividing up the
Constitution among the various committees, in order that it may
be regularly and formally in the hands of these bodies that are to
consider it and report their action to this Convention. It does
not stand here therefore in the nature of a constitution that has
been adopted by the people. Merely as an ordinary document for
the consideration of this body and its reference would therefore
simply be properly taking the course which ordinary matters for
the consideration of the body to take.

The President: I would suggest to the gentleman from Min-
nehaha County, that I differ with him entirely as to the powers of
this Convention; if the Convention so orders I shall make the
reference.

Mr. Clough: I then move that at the reading of each one of
these captions it be assigned to the proper committee.

Mr. Hole: It has been my understanding, and I think it is
the common understanding that the fact when this was submitted
to the people, it fixed this as the constitution of the State of Dakota,
with few exceptions. I see no purpose, no object other than merely
for comparison that this Constitution be referred to any committee.

Mr. Davies: I think we are placing a great responsibility upon
our worthy President in naming the committees in this way. It
seems to me it will be a very difficult task for the President to refer
these without any aid without placing the work in conflict with
the work done yesterday where this same work has been referred
to committees.

Mr. Caldwell: If I may be excused for speaking so many
times, I would say, that of course these various committees, (for
instance, on Name and Boundary) all these various committees
have been appointed but they can act only upon such matters as
are definitely and regularly referred to them by this body. While
it is true that this Constitution has been adopted by the people, still
there are many portions of it other than those enumerated in the
Enabling Act which will require some sort of fixing and change, in
order that they shall agree with the requirements of the Omnibus
Bill. I find there are some provisions in this Constitution, which
will not need to be changed or amended, still nevertheless they ought
to go to the various committees to be reported back to this House
and then be incorporated in a definite official formal document

REFERENCES TO COMMITTEE 67

which shall be prepared by this body to be submitted to the people
next October. It does not make any difference whether any par-
ticular proposition has any change in it whatever; it nevertheless
has to be voted upon, has to be first submitted by this Convention;
the fact of the provision having been approved at the election in
September, 1885, does not give it any standing as a part of the
fundamental, law of this commonwealth at this time, and as stated
by the gentleman from Bon Homme the purpose of this reference
is to refer this document to the various committees in order that
it may be properly reported to this body; I. would therefore again
respectfully refer to the motion which has been made.

The President: The question before the Convention is
whether these separate articles shall be referred to the separate
committees ; the Constitution called the "Sioux Falls Constitution".

The motion prevailed.

Mr. Huntley: As the Secretary proceeds to read the captions,
I move that the President assign it to the various committees.

The President : I have no idea that this Convention can amend
one of these articles except that it comes within the requirements
of the Omnibus Bill ; I want it to be understood that this reference
is by the Convention.

Mr. Zitka: I made the motion that the different provisions
of this Constitution be referred so that those which might be changed
may be considered by the proper committees and that those com-
mittees may turn to their work or proceed to work. Some of us
are anxious to get home, and they do not know as yet what their
duties are with reference to the Convention; therefore let the Con-
stitution be referred to the different committees, that each committee
may make their report after examination; if there is anything to
do; let them do it, — if they cannot do anything, that ends their
work. The captions in each and every one of these articles in this
Constitution indicates to which committee that portion of the Con-
stitution shall be referred, and I do not think there will be any dif-
ficulty whatever on the part of the President.

Mr. Young: I move the Preamble be referred to the Com-
mittee on Phraseology.

Mr. Caldwell Not desiring to be captious, I would question
that as being the proper reference ; it seems me that it should go to
the Committee on Bill of Rights. The very name, is the declaration

68 SOUTH DAKOTA DEBATES 1889

as to what is the purpose of this Committee on Arrangement and
Phraseology; its functions comprise only the work of getting
together in proper shape the matter which has finally been adopted
by this Convention.

Mr. Young:: There is certainly nothing in this Preamble
that interferes with any rights or that grants any of our personal
rights ; the subject matter is certainly now within the scope of the
duties of the Committee on Bill of Rights. The changes to be
made in the Preamble is simply to change the name of the state ;
it seems to me that comes purely within the scope of the duties
of the Committee on Arrangement and Phraseology.

Mr. Boucher: It seems to me as I look at it, that as the Pres-
ident is to assign these captions, that this motion is out of order.

Mr. Sterling: I second the motion; it is my idea that there
was no committee now to which this might be assigned; there is
no committee given us by the Committee on Rules on Preamble;
hence I think as the gentleman moved that the Committee on
Arrangement and Phraseology is the proper Committee to which
this might be referred, for the reasons stated.

Mr. Williams: It seems to me the only change that is neces-
sary to be made is in the name of the State, that the proper com-
mittee would be the Committee on Name, Boundary and Seat of
Government. Perhaps I am not informed.

Mr. Fellows: I move as an amendment, that it be referred
to the Committee on Bill of Rights.

Which motion was lost by a rising vote of forty-one ayes, and
fourteen nays.

The original motion prevailed, by a rising vote of thirty-eight
ayes and ten nays.

The President: The Preamble stands referred to the Com-
mittee on Arrangement and Phraseology.

Clerk: Article 1, Name and Boundary.

The President: Unless otherwise directed, this will be re-
ferred to the Committee on Name and Boundary.

Clerk: Article 2, Division of the Powers of Government.

The President: Will the gentleman from Bon Homme indi-
cate what committee he desires that referred to ?

Mr. Zitka: I will leave it to you Mr. President, to indicate
the Committee.

REFERENCES TO COMMITTEE 69

Mr. Caldwell: In order that the tail may go with the hide, I
move that it be referred to the Committee on 'Arrangement
and Phraseology.

Motion was not seconded.

Mr. Spooner: I move that it be referred to the Executive
and Administrative Committee.

Which motion prevailed, and the President declared it so
referred.

Clerk: Article 3, Legislative Department.

The President: Referred unless otherwise ordered, to the
Legislative Committee, No. 3.

Clerk: Article 4, Executive Department.

The President: Unless otherwise ordered, to Committee Xp.
2, Executive Department.

Clerk: Article 5, Judicial Department.

The President: Committee No. 1, unless otherwise directed, —
Judiciary.

Mr. Caldwell: I would call attention to the fact that part of
Article 5, refers to apportionment of the Judicial Circuits o the
State, and would ask if it might not be proper to refer so much
of it to the Committee on Apportionment.

Mr. Caldwell: I withdraw the suggestion.

Clerk: Article 6, Bill of Rights.

The President: What committee will you have that referred
to?

Mr. Westcott: I move that it be referred to the Committee
on Bill of Rights.

The President: Referred to Committee No. 4, Bill of Rights.

Clerk Article 7, Election and Right of Suffrage.

The President: Unless otherwise ordered, to Committee No.
5.

Article 8 — Referred to Committee No. 8, Education and School
Lands.

Article 9, County and Township Organization. Referred to
Committee No. 11, County and Township Organization.

Article 10, Municipal Corporations. Referred to No. 9, Mu-
nicipal Corporations.

Article 11, Revenue and Finance. Referred to No. 13, Revenue
and Finance.

70 SOUTH DAKOTA DEBATES 1889

Article 12, Public Accounts and Expenditures. Referred to
Committee No. 14.

Article 1*3, Public Indebtedness. Referred to Committee No.
12.

Article 14, State Institutions. Referred to Committee No. 15.

Article 15, Militia. Referred to Committee No. 22.

Article 16, Impeachment and Removal from Office.

Mr. Caldwell: I suggest the Judiciary Committee.

Mr. Zitka: I think the Legislative Committee is the proper
Committee. The Legislature is the body that tries impeachments.

Mr. Price: I move that it be referred to the Legislative
Committee.

Which motion was duly seconded.

Mr. Caldwell: Impeachment is certainly a judicial proceeding,
and not legislative; it seems to me the original suggestion ought
to prevail, that it be referred to the Judiciary Committee, not the
Legislative; I offer as an amendment, that it be referred to the
Judiciary Committee.

Which motion received a second.

Mr. Spooner called to the chair, and President Edgerton took
the floor.

Gentlemen of the Convention: I do not concede for a moment
that under the provisions of the Omnibus Bill, this Convention has
any authority to adopt the course we are now pursuing. The
interests at stake are far too momentous to make any mistake in
this matter. It is for that reason that I present these views. I
may not represent a majority of this Convention. It is my opinion
that we cannot change a branch of this Constitution; we have these
questions that have been ratified by the people and there is no
power in this Convention to alter, or change or add to this article
on impeachment. That is the question you are now referring.
Taking from the Constitution and referring it ito a committee they
must act upon it ; that is annuling the Constitution.

Mr. Caldwell: While I agree perfectly with the gentleman
from Davison, that it is beyond the province of this Convention
to order anything not contemplated by the Omnibus Bill, it is
nevertheless a fact that this Convention will very much expedite
its business if it shall refer these various subjects to proper com-
mittees and' allow them to inform the Convention bv their examin-

EDGERTON OPPOSES REVISION 71

ation as to whether or not there be anything contained within any
particular Article that may or may not come within the scope of
the Enabling Act. The Enabling Act, in addition to providing
certain specific changes, such as those referring to the name of the
state, and such as referring to the boundary of the state, and such
as referring to apportionments, also requires that there shall be
such other changes as shall be necessary to make this Constitution
comply with the requirements of the Enabling Act. Now whether
or not there be anything in the particular Article, needing change,
this Convention cannot at this time determine, and it could scarcely
determine otherwise than by having it read ; a much better way, and
the way which was contemplated by the gentleman who offered
the motion which prevailed here, was that these various portions
of the Constitution should be referred to these several committees,
not that changes which are necessary be reported by such com-
mittees but that such committee should determine whether or not
there is anything in the respective provision that does need chang-
ing. This is a matter which it seems to me is freely within the
scope of the powers of this Convention and of its Committees.
Take for instance the Preamble; now there is nothing in the En-
abling act which refers to any change in the Preamble ; nevertheless
a change in the Preamble is necessary, because it reads, "We the
people of Dakota". There is to be a change in the name of this
commonwealth, and that name must be stated, — at least suggested
or best brought before this Convention for action, by having it
come in the way of a report from a committee. As I say with
regard to this particular Article 16, whether or not there be any-
thing in that that necessitates a change in order that it shall comply
with the provisions of the Enabling Act, how is the Convention to
know ; each member may know by reading whether or not that be
the case, but this Convention as a body cannot know it until it be
communicated to it and that particular part be before it ; it there-
fore seems to me to be perfectly practical, and absolutely necessary
that every article, — that every part and parcel of this Constitution
and the Schedule and Ordinance, should be referred in order that
the action or .non-action may come before this Convention regu-
larly and properly.

Mr. Jolley: I do not see for the life of me, why there is to
be any value attached to this document, the Constitution of the

72 SOUTH DAKOTA DEBATES 1889

Convention of 1885, outside of the fact that they did their work and
signed it. The people last May said they would support by a large
majority th£ Sioux Falls Constitution and that a constitutional
convention should meet here to make such changes as should be
made under .the Enabling Act. That constitution so passed by a
constitutional convention in 1885 was an instrument signed by
men composing that Constitutional Convention, who then sub-
mitted it to the people; that instrument, as an instrument, has
nothing at all to do with this Convention ; we do not know what it
is; it can't come before us, it is something that has to be referred
to our Committees here in order to know what it is. How can it
more properly be done, than in this manner? For instance the
question, Impeachment and Removal from Office, is submitted to
a committee; there possibly may not be any changes in it; there
certainly is not that I have seen from reading it through since this
discussion began. But, Sir, when that committee comes in, and
says that that is the Article that we report as your committee on
Impeachment and Removal from Office, and it is adopted and
ratified by this Convention, then it is the act of this Convention.
There is no other way that we can tell whether changes can be
made; and there is no member on the floor of this Convention that
will watch any closer not to violate the provisions of the Omnibus
Bill, than I will. I have lived too long in this country as a territory
to risk again, the chance of voting. I will go as far as the gentleman
from Davison; as far as he can possibly do to avoid overstepping
our powers under the Omnibus Bill, but I cannot possible see how
this Convention can take action without these propositions are
referred to committees, and they may make their report to this
body for their final action. That constitution that was passed
in 1885, is in the hands of the President of this Convention to remain
there until he places it in the hands of the Secretary of the State of
South Dakota. He is the custodian of it now It is not before
this Convention in any way ; but it can be brought before these
committees and they can by comparison decide whether it is the
same constitution adopted at that time, — and then report to this
Convention, and this Convention then votes on those articles. We
cannot adopt a Constitution not in the hands of this Convention;
we cannot say what it is ; we cannot sign an article if it remains in
our President's hands ; it cannot be enrolled in his hands. It cannot

JOLLEY' VIEWS ON REVISION 73

be brought before this body in any other way than by reference ;
it cannot be considered by committee without reference.

Mr. Edgerton from Davison: I may have been in fault; I
stated my opinion fairly upon this floor as a lawyer ; I have no doubt
upon the proposition; not the least in the world, but if it will sat-
isfy the gentleman, I will withdraw all opposition; but for myself
I do not think Col. Jolley and myself will differ upon that, that
it is impossible for this Convention to alter a single phrase of that
Constitution except upon the grounds made in the Omnibus Bill ;
it cannot be done ; but if it will satisfy these two gentlemen that
they vote upon it again, I am satisfied. I thought the reference
might possibly imply the right to change, so I interposed this ob-
jection, but if it will satisfy anyone that it shall be rererred, I have
no objection. This may be said in its favor; I didn't know yester-
day, when I made the long list of committees, that many of them
would not have much to do, and if this will exalt the character of
these committees that I appointed yesterday and give them more
prominence before this Convention, and in the State, I would be
the last one to throw a straw in their way. I do not know how
many of my friends are upon these committees, but in order that
those committees may be exalted, I withdraw all objection and let
all these articles go before these committees as if they had never
been ratified by a former convention, elected by the people of 1885,
as if it never had been ratified by Congress, and yet not ratified by
the people on the 4th of May last ; I withdraw all objection and let
it come before the committees.

Mr. Jolley: So far as I am concerned myself; I hope I am not
so foolhardy as to set myself up upon so bold a proposition as stated
by the gentleman from Davison, — if he supposes that is my position.
I supposed, Sir, that the gentleman from Davison, and myself were
both delegates in this Convention, each entitled to an opinion, and
if we differ, we can differ as gentlemen, and that is the way we do ;
I state it is, as far as I am concerned. I will state again to the
gentleman from Davison, that I will go as far as he will not to
change any article in the Constitution that the Omnibus Bill does
not allow us to change; I will oppose dotting an "i" or crossing
a "t" that the Omnibus Bill does not unqualifiedly allow; yet I do
contend that the only way we can get at it is by referring it to
committees and have the committees report.

74 SOUTH DAKOTA DEBATES 1889

Mr. Hole: I have no special objection that this go to the
committees; that may be the best way to facilitate the work of
this Convention, but I think it should be distinctly and unquali-
fiedly understood that that part of this constitution that has been
ratified by the people, and wherein we have no manner of right
to charge that that stands as the people have adopted it ;^we do not
need to adopt that over again.

Mr. Cal dwell: In my judgement it makes no particu'ar
difference that the people of this commonwealth have adopted this
Constitution, except that we have it here now; the fact that it is
the Constitution of 1885, would make no particular difference; it
would be as incumbent upon this body to take up every line of it,
and re-adopt it now, as it was for it to have been adopted first, be-
cause, when this document, the Constitution of 1889, shall go out
from this body, not only must go out that part which may be ra-
tified by this body, but there must go with it and with the seal of
this Convention upon it, also, that part which may have been
brought over from the Constitution of 1885, which was re-adopted
on the 14th of last May ; and those who maintain' here the idea of the
reference to committees, do not have any idea whatever of changing
a single jot or title of that which ought not to be changed. But
it is claimed by them, that in order that this body may have the
action of the Convention of 1885 properly before it, that the Con-
stitution of 1885, should be taken and allotted to these respective
committees that have been appointed that they make the ex-
amination. It would be perfectly proper if this Convention should
see fit, to go to work and examine it itself; it is necessary, however,
that this Convention shall examine and shall know officially what
was the action of the 1885 Convention; what is the document that
Congress has said shall be preserved here ; it is necessary that this
Convention shall do it ; it is necessary that this Convention shall
do it as a body, — determine what there is in the action of the
Constitutional Convention of 1885, that shall remain, — and the
very much easier and better way, is to allot the various portions
of this document to the committees which have been appointed
and allow them to report and thus bring' the matter before this
body; and if any other idea than this should prevail, what would
be the result? There would have to be submitted to the people
next October, two documents, — at least two parts of documents;

CALDWELL'S IDEAS 75

there would have to be submitted to the people next October for
their re-adoption such parts of this Constitution of 1885 as were
not changed, and there would have to go also such parts of this
Constitution as were necessarily qualified by this Convention;
the result would be that there would be twins presented to the
people of this commonwealth for their adoption. It seems to me
no such thing as that was contemplated by Congress; the object
was that this Convention should frame a document out of what
had already been ratified by the people with such limitations as
were prescribed by this Enabling Act.

Mr. Edgerton, of Davison: I ask the indulgence of this Con-
vention. The gentleman says, that unless all of these articles are
re-adopted by this Constitutional Convention they have no place
in the fundamental law of the State; that is not my understanding.
I ask him this ; suppose the majority of this Convention do not
agree upon this article now under consideration, Impeachment
and Removal from office, can this Convention blot it out after the
people have ratified it twice, and after the Congress of the United
States have sent it here under the existing circumstances? I deny
that this Convention has got the power to blot out that article on
impeachment. I had supposed that all objections were withdrawn ;
I withdrew all that I had ; I want it referred to the separate com-
mittees so that every committee may have something to do ; I an-
nounced to the Convention fairly that I withdrew all objection;
it was only in answer to that one proposition that I asked the in-
dulgence of the Convention.

Mr. Lee: I ask the Convention if Congress has not made a
will, complete, signed, sealed and delix-ered? The Honorable Judge
at my left, is right ; we have no occasion or right to prate about the
will ; I do not believe we have any business to take up this matter
and refer it to committees at all; it is already fixed; we cannot
change it ; we can take the whole business and look it over and
come back and make a half a dozen changes that must be made,
here in white and black. What is the use of spending our time for
nothing?

Mr. Davies: I think this discussion will settle this point as
to future points; it is not wasted time; it is something that is liable
to come up at any time until the question is settled. I see no way
out of this without reconsidering our work of yesterday. With

76 SOUTH DAKOTA DEBATES 1889 '

reference to the gentleman from Davison, and the other gentleman
whose countenance I do not remember at once, I do not think there
is that conflict which it might appear. It is true that we have
light from both these sources; the Omnibus Bill is our authority;
the moment we get out of that we find rough sailing. The Omnibus
Bill contemplates that this Convention take every line and adopt
it as it is when not necessary to modify it according to the directions
of the Omnibus Bill, — to modify it when and where we are told to
do so by that bill. In my opinion every line of this Constitution
must have the stamp of this Convention upon it before we can pre-
sent it to the people for their vote next October; that it is now
understood that every article as presented to the committees, —
that these committees understand that they are not to change only
as the Omnibus Bill directly tells them so. This work will be
simplified, and we can hasten on with it. The question, it seems
to me, is one of reference to the committees. I shall favor reference
to the Legislative Committee, if that is the motion before the
House.

Chairman: Is the Convention ready for the question?

Mr. Zitka: The motion was, that Article 16 be referred to the
Legislative Committee: "The House of Representatives shall
have the sole power of impeachment. The concurrance of a majority
of all members elected shall be necessary to an impeachment".
What would be more proper than the Legislative Committee for
this reference? Impeachments are tried by the Legislature, and
every member of the Legislature is judge. Therefore, I insist as
far as my vote is concerned, that it be referred to the Legislative
Committee.

Mr. Caldwell: I ask that the gentleman will look at Section
3; while of course Section 1 refers to Legislative Impeachment,
there is a good deal more under the order of impeachment than
impeachment of the members of the Legislature; Section 3 reads:

(Here. insert Section 3, Article 16.)

Certainly that is judicial matter.

Mr. Wescott: I move an amendment to the amendment
before the House

The Chairman: The previous question is called for; I think
the time for an amendment is passed ; are you ready gentleman for
the question?

FURTHER REFERENCES TO COMMITTEES 77

Mr. Davies: Please state the question.

Mr. Wescott: Amendments are always in order. My amend-
ment is that this question be referred to the Committee on Bill
of Rights The impeachment is the right of the general public;
but at the same time there are rights on both sides. I move the
question be referred to the Committee on Bill of Rights.

Mr. Jolley: What is the condition of the motion; how many
amendments are there, please?

The Chairman: I believe there are two; there is no second
to the last motion.

Mr. Jolley: I move an amendment to the amendment, that
this bill be referred to the Committee on Military Affairs ; my reason,
Sir; for moving this Committee is, that the Chairman of that Com-
mittee is a man who during one day of the week preaches the Gospel,
and he does all he can to preach religion in its purity ; the other six
days he is stirring up war and destruction and everything that's
bad ; the Chairman of the Committee that I ask that this be referred
to is the fighting parson from Codington County. (Laughter.)

Mr. Atkinson: I second the amendment to refer it to the
Committee on Bill of Rights.

Which proposition to so refer was, upon coming to a vote, lost.

The Chairman: The question recurs upon the amendment
to refer it to the Judiciary.

Mr. Dickinson: I rise to the point of order ; if the main amend-
ment or the original motion is now before us; the gentleman from
Minnehaha County moved an amendment which was lost and the
motion now refers to the original question.

- The Clerk: Our record shows Mr. Price moved Article 16 be
referred to the Legislative Committee and Mr. Caldwell moved to
refer it to the Judiciary, which we are acting upon now.

A division of the House being called for the amendment was
lost by rising vote.

The question recurring upon the original motion, the motion
prevailed and Article 16 was referred to the Legislative Committee.

The Clerk: Article 17, Corporations.

The Chairman: Will the President assume his seat; I do not
wish to refer these myself.

The President of the Convention again occupied the chair.

78 . SOUTH DAKOTA DEBATES 1889

The President: What committee, Mr. Zitka, do you wish
this referred to?

Mr. Zitka: Number ten, Corporations Other Than Banking
and Municipal.

The President: It is so referred.

Article 18, Banking and Currency, was referred to Committee
No. 21, Banking and Currency.

Article 19, Congressional and Legislative Apportionment was
referred to Committee No. 16, Congressional and Legislative Ap-
portionment.

Article 20, Seat of Government, was referred to Committee
No. 6, Name, Boundaries and Seat of Government.

Article 21, Miscellaneous, was referred to No. 27, Miscellaneous
Subjects.

Mr. Willis: I object. This Committee will have to be oc-
cupied with Section 5. I foresaw the trouble a moment ago that
we would get in a squall like this ; some women are not married —

The President: Does the gentleman ask this reference to
any special committee or do you ask that a portion of it be referred
to one Committee and a portion to another.

Mr. Willis: All I ask for is, that the Committee on Rights of
Married Women have their portion of this Article, and :f it is
necessary, ask that it be substituted.

The President: If I understand the gentleman it is this,
that Section 5, of Article 21, be referred to Committee No. 20 on
Rights of Married Women.

Mr. Willis: Perhaps this motion should cover the whole
ground that the different sections of this Article be referred to the
Committees that are named.

Which motion prevailed.

The President: , Section 1, of Article 21, is referred to Com-
mittee No. 25, Seal of State, Coat of Arms, and Design of Same.

Section No. 2 is referred to Committee No. 28, Compensation
of Public Officers and Members.

Section No. 3, — to what committee will you have that referred?

Mr. Caldwell: I would suggest No. 27.

The President: It will be so referred.

JUDGE CARSON ON REVISION 79

Section 4, of Article 21, is referred to Committee No. 19, Ex-
emptions and Personal.

Section 5 is referred to Committee No. 20.

The Clerk: Article 22.

The President: It is referred to Committee No. 7, Federal
Relations.

Articles 23, Amendments and Revision of the Constitution, is
referred to Committee No. 23, Amendments and Revision of the
Constitution.

Article 24, Prohibition.

Judge Corson: I move that further consideration of this
matter be postponed until two o'clock tomorrow ; I propose to move
a reconsideration of this matter in order to have this question dis-
cussed this afternoon and re-discussed tomorrow. I think we ought
to have a full understanding of this matter before proceeding any
further.

Mr. Hole: I second the motion of the gentleman from Law-
rence.

Mr. Atkinson : I move we make this the special order tomorrow
at ten o'clock and that when we do adjourn it be until ten o'clock.

Mr. Davies: There are committees to meet tomorrow and
it will be impossible to do committee work and be here at the same
time.

Mr. Dickinson: It seems to me that after the discussion of
this subject that we have had now that we should go into a committee
of the whole and discuss the proposition.

Mr. Corson: I object to that motion because this motion
to postpone until two o'clock tomorrow is made for the express
purpose that the members may look into this matter carefully I
desire to look into it myself a little more; I desire to examine it;
it may be a very important question; I see by the Omnibus Bill
that the Constitution adopted is to be re-submitted. Not the Con-
stitution that we may make here, but the Constitution framed in
the Convention of 1885, and adopted, it is to be re-submitted; not
some other Constitution, — not something that we may make here ;
not such amendments as we may desire to make. In order that
we can proceed intelligently we had better take one day to consider
this matter. That we get into no false position in regard to this
subject ; hence I desire • time to examine it ; I think every mem-

80 SOUTH DAKOTA DEBATES 1889

ber here desires to examine it carefully and proceed with care in
this matter because it is a matter of too much importance to pro-
ceed hastily ; hence I hope the gentleman will not press the motion
to take it up now because the motion is made to postpone it until
tomorrow that every gentleman in this Convention may himsqlf
examine it, and among ourselves compare notes and get at the true
methods on which we are to proceed. I therefore suggest again
that it is an extremely important matter how this Constitution
is to be handled in this Convention. To know what to do with the
Constitution adopted in 1885 to be re-submitted in October. If
we are ready to make a new one that is not the Constitution of
1885, it is another and different constitution, and there is doubt if
we have any authority or power to make it. I merely throw out
the suggestion for the purpose of showing the importance of the
question before the Convention.

Mr. Lee: I think after we have all slept one more night we
shall be satisfied to go by the Omnibus Bill, without any further
debate.

The President: The gentleman from Lawrence moves the
further consideration of this reference be postponed until tomorrow
at two o'clock and made a special order for that hour. An amend-
ment is proposed, that it be made a special order for tomorrow at
ten o'clock, and when this Convention adjourn, it adjourn to
meet at that hour. I would suggest Rule Thirty-four, unless it
is changed makes the hour of meeting at two o'clock tomorrow;
unless it is changed and the rule modified. If the Chair is right
the amendment is not in order.

Mr. Atkinson: I withdraw the amendment.

The President: The motion before the Convention is, shall
the further consideration of this order of business be postponed
until tomorrow at two o'clock and made a special order for that
time.

Which said motion prevailed.

Mr. Corson: I now move that the vote by which we adopted
the resolution to read the Constitution and refer the different sub-
jects to the proper committee be re-considered, and that motion
be made the special order for tomorrow.

Motion duly seconded.

Mr. Dickinson: I believe in a full discussion of any matter

REVISION or CONSTITUTION OF 1885 81

upon which we differ; it seems to me that there is no difference of
opinion; I hear no suggestion from any of the speakers that they
contend for an amendment of the Constitution. We only differ
as to the methods of proceedure in doing our work. I am for one
very anxious that we get our work done and delay no longer than
necessary ; I wish we might accomplish more each day , in session and
get through quicker; for that reason, I am opposed to this motion.
My own understanding is that we have simply to deal with two
documents, that we have no power of amendment at all; that we
have our requirements in the Omnibus Bill to carry out, and this
is a reference to the different committees only in order that if there
is any change in accordance to the requirements of the Omnibus
Bill, they can so report it. It seems to me a delay until tomorrow
is an unnecessary delay ; we might just as well settle that here as
tomorrow.

Mr. Hole: As I understand the question, there is a radical
difference; the one side assumes the necessity of re-adopting the
Constitution; of going through and referring it to committees and
having the report of the committees which pre-supposesthe adoption
of it. While upon the other hand the few that I have talked with
is of the opinion that the reference is simply for the purpose of
comparison ; that we cannot adopt it ; we have no such right as
that ; our only right is to reveiw it and compare and see if it compares
with the other, and is the Constitution of 1885 which has been
voted upon by the people. All we have to do, and all we can do
under the Omnibus Bill is merely to compare that and then make
the necessary additions and carry out the intention of the Omnibus
Bill. There is a direct confliction in this House and that question
should be settled. I think if we have time to consider it I am
satisfied we will settle it right ; I do not want to see it settled this
afternoon; I want to give it some study, for it may be very impor-
tant.

Mr. Zitka: There was no intention on my part when I made
this motion to revise the Constitution, nor do anything of the kind;
simply to comply with the Omnibus Bill ; to refer the Constitution
to the different committees so that they may see what changes
should be made according to the Omnibus Bill. That there are
no portions of the Constitution which had no provision in the

82 SOUTH DAKOTA DEBATES, 1889.

Omnibus Bill; and if there is any parts of the Constitution which
has no provision in the Omnibus Bill, to leave it alone without
touching it ; without doing anything with it ; and what parts there
are that require any changes — to make them. That was the only
object. The only way to get at this was to refer the Constitution
to the different committees ; because if we took time in Committee
of the Whole, or in Convention, it would take from one day to an-
other and I think we would not get through this summer. As far
as my experience goes, that is the only proper way to do it, and
that we are far from unanimous upon that point and that this
motion should prevail.

Mr. Caldwell: I would simply call attention to the Enabling
Act, in Section Four: "Whereupon the said Convention" (referring
to the four states proposed) "shall be, and are hereby authorized
to form constitutions and state governments for said proposed
states respectively." And then with regard to South Dakota
particularly: "It shall be the duty of the Convention which may
assemble at Sioux Falls, as herein provided, to re-submit to the
people of South Dakota for ratification or rejection at the election
hereinafter provided for in this act, the Constitution framed at
Sioux Falls and adopted November 3, 1885, and also the articles
and propositions separately submitted at that election, including
the question of locating of the temporary seat of government,
with such changes only as relate to the name and boundary of the
proposed state, to the reapportionment of the judicial and legis-
lative districts, and such amendments as may be necessary in
order to comply with the provisions of this Act."

There is to be a constitution formed ; the powers of this body
include that ; and it is to be re-submitted ; so that such submission
as has been had heretofore, cuts no figure whatever. As I said
previously, this Constitution of 1885, or one like it, might have been
submitted annually for a thousand years and it would not have
made any difference; would not have given it a single particle of
validity, now or hereafter. The Congress of the United States has
required this Convention, that it shall go to work and frame a Con-
stitution; that it shall re-submit such parts of this Constitution
of 1885 as may be brought over, or re-adopted by this Convention.
Of course if this Convention, in its foolhardiness should see fit to
run counter to the requirements of the Enabling Act, or the people

DISCUSSION OF REVISION CONTINUED 83

would, and to suppose that it is the purpose of any committee of
this body or of this body itself to jeopardize statehood and all
blessings which we have hoped from it, by attempting to enact
here for submission to the people, something which is outside the
province of this body as fixed by the Congress of the United States,
is to suppose a foolhardiness, which I do not believe the history of
this body will prove to have been just. The reference to a com-
mittee is certainly neither by implication nor by necessity nor upon
any other consideration, any attempt whatever, or can be construed
into an attempt to change anything; but as I said before it is neces-
sary for this body to have regularly before it, what are the pro-
visions of this Constitution of 1885, and the only way to do that
is to take what purports to be the Constitution of 1885 and to
submit or refer to these various committees these things which
purport to be the provisions of the Constitution of 1885, and when
these respective committees examine and compare them they will
be able to notify and inform this Convention as to whether or not
these "various parts are contained within the document and by no
other way can this information be secured unless this body itself
shall go to work and make the comparison.

Mr. Davies: The two motions which have passed this Con-
vention answer the purpose for which it was passed; to give us
further time until tomorrow to consider all this, and it is well;
but why now go to work and undo all we have done; why undo it
until we do know, for we have until tomorrow to consider this very
matter; if we find our work today is not right it will not then be
too late to change and ask for a reconsideration of this whole matter.
We as a convention are to re-consider and examine this Consti-
tution with a view to meet the requirements of the Enabling Act ;
how? We have appointed the committees, and given this com-
mittee a certain portion, and that a certain portion to look over
and report, and then we have the Convention as a Commi;
the whole, if you please, who can consider every line that comes
from every committee. The mere fact that a committee makes a
report does not make the Constitution — does not take from this
Convention one iota of power or authority. I see no reason there-
fore, why we should not sustain this second motion, and undo all
we have done. Let us go on with whatever business is before us,

84 SOUTH DAKOTA DEBATES 1889

and if necessary tomorrow if this is to be the understanding, then
re-consideration will be in time.

Mr. Corson: My motion was simply a motion to reconsider
and postpone that until tomorrow, so that if we find we are pro-
ceeding regularly, it can be withdrawn and voted down; it delays
nothing; there is no reason why the motion to reconsider should
not stand until tomorrow ; I think we had better make it today and
let them go over together.

Mr. Willis: Give us time to consider whether or not we want
this motion to reconsider, before us or not ; let it remain as it is.

The President: The motion to reconsider the resolution by
which the Constitution was ordered to be read section by section
and referred to proper committees, that the consideration of that
motion to reconsider may be postponed until tomorrow at two
o'clock, until the time of the special order, if there is no objection
that will be the order of the Convention; the Chair hears no objec-
tion; it is postponed until tomorrow at two o'clock.

Mr. Humphrey: I have a resolution I wish to offer, and a
motion. I move that a committee of three be appointed to care-
fully proof read and compare the copy of the Constitution as found
in Long's Legislative Hand Book, with the original copy now in
the hands of the President of this Convention and report any and
all errors or discrepancies existing between them.

Which motion was duly seconded.

Mr. Humphrey: My object in moving this covers a portion
of the ground, which as I understood it, lead to the adoption of
the motion yesterday, that we should read to this Convention the
original copy of the Constitution; I had understood it was the pur-
pose of some to have a proof read copy furnished every member
of this Convention, of the Constitution a corrected copy, — so that
whether it was referred by sections, or whether it was not referred,
whenever a committee reported every member of this Convention
would have in his possession a verified copy of the original docu-
ment with which he could compare every report and every alter-
ation proposed, and settle in his own mind and judgment whether
it comes within the provisions of the Omnibus Bill. That we have
no right to make any alterations whatever except as required by
that bill, I believe is the judgment of every member of this Conven-
tion. It is for the purpose of placing in the hands of every member

TECHNICAL ERRORS CORRECTED 85

of this Convention, the errata showing any changes or alterations
that may exist ; then if they are few they can be made with the pen,
but if many, it mav be proper for the Convention to provide a
re-print of the Constitution proof read and verified, and place in the
hands of the Convention.

The motion as made by the gentleman from Faulk prevailed.

The President: The committee provided for in the last mo-
tion will consist of Humphrey of Faulk, Mr. Dickinson and Mr.
Zitka,

Mr. Caldwell: In order at least to have the matter suggested
to the members of this Convention, I would make this inquiry,
whether or not in this proof reading, — suppose that a manifest
error should be observed in the official engrossed copy, — we will
say an error in grammar, an error in punctuation, or an error in
orthography, and say further that the aforesaid errors should have
been corrected in this Long's Legislative Hand Book, is this Com-
mittee understood to be required to report that the correction be
changed back to the error in the enrolled copy ? And in that con-
nection, while I am not speaking to any motion, I would at the
same time, like to call the attention of the Convention to some
matters pertinent to the suggestion which I have made ; it is that
unless this engrossed copy be a much better document clerically
than documents of such character usually are, it is unavoidable
that there shall have been many errors crept into it. There is
one section, in which the change of a single letter in a single. word
did in my judgment precipitate a greater amount of argument with
regard to the provisions of this Constitution during the campaign
of last May than was precipitated by any other consideration ; that
is with regard to bribery, and its punishment. There is the word
in the printed form in almost all the copies of the Constitution, —
"for" should have been "of" ; the language is as I recall it, "The of-
fense for bribery or corruption", — whether or not the error exists
in the official copy I do not know, but it would seem to me and I
would state it as my private judgment that it is within the purview
of this Convention to make all such changes as that, which may
be discovered in that enrolled copy, and I would therefore move
that this Committee just appointed, shall be requested to report
to this Convention precisely what discrepancy there may be between
the copy of the Constitution as contained in Long's Legislative

86 SOUTH DAKOTA DEBATES 1889

Hand Book and the copy which is to be regarded as the official
enrolled copy, in order that when the action of this Convention
shall have been enrolled and engrossed, that no error which may
have existed in the original enrolled copy may find its way into our
work. It seems to me that changes of that character, while this
Convention is not permitted to make amendments of a general
character, 'still it seems to me that it is within the powers of this
Convention to change those manifest errors which may exist in
the enrolled copy, even in those articles which cannot be amended
by this body . I believe that to be the case for the reason, that this
Convention is required to prepare a constitution and is authorized
to make such changes therein as are necessary in order that the
result of this work shall comply with the requirements of the En-
abling Act. The requirements of the Enabling Act most certainly
are, that there shall be formed a document as free from these
clerical errors as possible. Of course all the legal evidence there
is of the Constitution of 1885, is the engrossed copy, and all this
Committee are requested to do is to notify this body of the dis-
crepancy between the enrolled copy and this copy here, and the
matter will be brought officially to the attention of this body , and
I will move that the Committee be requested to report every dis-
crepancy of any sort, even in the matter of orthography, — even in
the spelling of names of counties to be reported to this Convention.

Mr. Humphrey: I will request the gentleman to read the
motion I made; it covers that ground.

Mr. Willis: I suggest that the gentleman from Minnehaha
get credit for his speech all the same.

On motion of Mr. Fellows, the Convention stood adjourned
until tomorrow, July 11, 1889, at two o'clock, P. M.

Two o'clock, P. M.

EIGHTH DAY.

Sioux Falls, Dakota, July 11, 1889.

The Chaplain: Our Father who art in Heaven, Hallowed be
Thy name; wilt Thou help us as we come before Thee, the Creator
and Preserver of us all, and ask that Thou wilt be with us this day;
that we may be wise and discreet and that every act of ours may
advance those things that may be best for our interests and for
the interests of those that have sent us here. May we at last
receive from Thee, that welcome, "Well done thou good and
faithful servants, enter thou into the joy of thy Lord." In Je-
sus' name we ask it.

AMEN.

The President : There were two special orders made y esterday ,
but unless otherwise directed by the Convention, I will complete
the regular calls before announcing the special order.

Mr. Jolley : We do not seem to have any copies of the Journal
of yesterday on our desks.

Mr. Price: I move the reading of the Journal be dispensed
with.

Which motion prevailed.

Communications and presentations of petitions.

Unfinished business of -the previous day.

Reports from Standing Committees.

Consideration of reports from Standing Committees.

Mr. Humphrey: Your Committee on Education and School
Lands beg leave to submit a partial report; in explanation of it
I would say that it is in the nature of a memorial to the President of
the United States with relation to the preservation of the school
lands; especially those that were particularly brought to our at-
tention by the resolution introduced by Mr. McGillicuddy ; it is
as follows:

88 SOUTH DAKOTA DEBATES 1889

To THE PRESIDENT OF THE UNITED STATES:

Your memorialists, the members of the Constitutional Con-
vention, for the State of South Dakota, now in convention as-
sembled at Sioux Falls, in said state respectfully represented:

That several of the most valuable sections of lands reserved
for the use of the State for school purposes, which lie in agricultural
districts, and some of which are contiguous to considerable towns
and cities are sought to be improperly appropriated under pretense
or claim that they are mineral or coal lands, and therefore subject
to appropriation and entry under the mineral and coal land laws
of the United States. Successful efforts in this behalf will cause
great loss to the school fund of the State.

Proceedings by the claimants to such lands are necessarily
EX PARTE, and at present no authority exists in the State, or any
of its agents to oppose these claims.

Your memorialists are advised that applications for patents
have been, or are about being made to the land department of the
United States for such lands based upon their alleged mineral
character. We know of no proceeding by any authorized agent
of the people of South Dakota by which the applications for pat-
ent can be as yet successfully resisted.

The people have no standing in the Department for such
purpose. As soon as the State shall be admitted and its agents
qualified, South Dakota will be in condition to resist their claims
successfully, or to protect the rights of the state whatever they
may be relating thereto.

Therefore, your memorialists respectfully but earnestly pray
the President of the United States to direct that all proceedings
relating to the entry of or issuance of patent to alleged mineral or
coal lands situated within the agricultural districts of South Dakota
be postponed and stayed until the State is by proclamation of the
President a^elared admitted into the Union of States and until
the Legislature of said State shall have the opportunity to appoint
the requisite agents therefor and provide by law for contesting
the right to make such entries and obtain from the government
patents to such lands. H. A. HUMPHREY,

Acting Chairman of Committee on School Lands.

Mr. Humphrey: I would like to call the attention of the Con-
vention to the partial report made by the Committee on School
Lands; I am under the impression that it may be a matter that we
desire to hear read.

Clerk: Reads Memorial to the President of the United States
as offered by Committee on School Lands.

PROTECTION OF SCHOOL LANDS 89

Mr. Price: It seems to me proper that before this Convention
takes action upon so important a matter, that it ought to be dis-
cussed, and we ought to thoroughly understand it. The object
of that resolution is as I understand it, to protect sections of land
for school purposes which are being taken under the mineral and
other laws. It is suggested to my mind, Mr. President, that it
would place this Convention in a very ridiculous position before
the government of the United States, if that resolution was allowed
to go to its President ; why ? Simply because there are established
laws relating to public lands, and they stand upon the statute
books of the country, and the President of the United States, nor
no other power, in my judgment, Sir, has a right to abrogate those
laws. William Andrew Jackson Sparks, if you please, a distinguished
friend of Dakota's interests (?) tried that once, and it was held by
the courts and everything else, that he had no right to suspend
the laws of this country. I am constrained to repeat that it would
place us in a very ridiculous position before our government.

Mr. Humphrey: It was my purpose to make an explanation
concerning this matter; it is this; there is no purpose as indicated
in the memorial that we propose either to petition for, or urge the
setting aside of the Land Laws of the United States. It is a matter of
common knowledge, and especially so throughout Dakota that there
is no system of laws within the United States, — laws that have been
in the books for years and yet in the application of which we are
so much at sea as we are with regard to the land laws ; the whole
system of rulings and decisions is a matter of such complexity that
it is impossible to determine anything definite about them. The
facts of the case are, pertaining to this, that it is understood that
there are parties endeavoring to secure patents of these lands and
are doing it without sufficiently establishing their just title and
right to the same ; the object of this resolution is to stop the issuing
of patents prior to the parties having fully established their rights
and at the same time aid in the protection of our school lands and
preserve them from being frittered away and being fraudulently
deprived of them. It is without the intention of setting aside, or
urging the President to set aside any law. It is understood that
parties who are anxious to accomplish the patents to these lands
are pressing the matter, and are personally pressing it at Washing-
ton; I have no idea that they will hurry the officers there any, but

90 SOUTH DAKOTA DEBATES 1889

still, it is not impossible; and such things have been done. To
prevent the possibility of their hastening action by providing that
they be taken out of their order and acted upon before they all
can be heard from, — that is the purpose and object of the memor-
ial, and that is all.

Mr. Wood: There are some things in that Memorial, which
I think it would be beyond question, going too far, for us to adopt.
In the first place, the President has not really anything to do with
the matter. These laws are for him to execute. It would be like
a criminal judge suspending sentence after a verdict of guilty had
been returned. There is a provision in the Federal Statutes for
the protection of all parties in interest in this matter; the County
Superintendents, if my recollection serves me right, are obligated
by their official duties to see that no undue advantage is taken or
any trespass committed upon the school lands, that is, lands that
will be school lands, if we ever become a state. The laws are in
force as the gentleman from Hyde has stated ; under these laws the
parties are undoubtedly proceeding, and we are asking the President
of the United States to suspend such action as is being taken at
present looking towards securing patent of this land. I think that
that would be working very great hardship to those who are labor-
ing in good faith to get title to coal lands and mineral lands. I do
not believe you should memorialize the President to do anything
of this character. If there are known cases in which frauds are
being perpetrated, let these committees name those cases, — name
those individuals who are liable to make an attempt to defraud
the government, but do not strike at everybody; because one man
is endeavoring to pick up a quarter section of land as coal land^it
is no reason for our memorializing the President to suspend patents
and thus work great damage to our fellow citizens who are not
endeavoring to defraud the government. I have a desire to pro-
tect the school lands, but we might make a greater mistake than
Brother Sparks made in his day. It was acts of this character
that worked all the hardship that was wrought upon the people of
this State ; the attempt to protect some counties against threatened
fraud and bringing everybody else within the operation of the rule.
This memorial covers too much; I hope the Convention will not
pass it. As I said before, there must be in the mind of some mem-
ber or members of this Convention specific cases. Now, if there

PROTECTING SCHOOL LANDS 91

are such, name those cases ; if I had any such cases in mind, I would
name them; if I had any evidence of the fact that an attempt was
about to be made to fraudulently obtain any of the school lands in
South Dakota I would describe the land if I knew the numbers,
and if I did not, I would endeavor to ascertain the numbers, and
would name the parties or corporations that were endeavoring to
defraud the government ; then I do not strike at the guilty and
innocent alike; then I do not impede progress which we should
not in any manner attempt to impede. Where is the case that
suggested the inserting of this memorial, let that case be named;
let the parties in connection with it be named; it might strike at
some of the delegates for all I know ; I am sure however, not among
the Democrats of the Convention. (Laughter.)

Mr. Sherwood: It seems to me that this resolution is a proper
one ; the matter of the school lands is of too much importance at
this time to be trifled with; it is I think, a question of as great im-
portance as will come before this Convention. It seems to me the
gentlemen upon the other side have misapprehended the idea of
the resolution. I do not think this is a matter of overriding the
laws ; I think it is a matter of overloading the courts ; that parties
interested in this action upon the one side may have a chance to
be heard. Today we have no reputation at all anywhere ; we stand
in the position of law, of being represented by nobody; we cannot
appear in these courts and plead for these school sections which
are our heritage. This is a matter between the United States and
individuals; the individuals take the property and appropriate it
to their own use; nobody appears on the part of the United States;
whereas, when we become a state, this land will vest in the State,
and the State will then have the right to appear before the court
and protect its interests. Today it has no title to this land at all ;
it cannot appear in the courts or proceedings against the United
States, or against a party ; therefore, I say in order to give both
sides a chance to be heard, and give the State, or the people of
the State, who are interested in these lands, and whose heritage
these lands shall be, a right to be heard, this memorial should be
forwarded to the President. It will work no great hardship to
now suspend all proceedings of this character until the people of
the State of South Dakota shall be represented in their capacity

92 SOUTH DAKOTA DEBATES 1889

as a state, I think that is fair, just and legal. I support the prop-
osition.

Mr. Dickinson: I raise the question of order as whether
memorializing the President or officers of the government as School
Lands, or Artesian Basin Survey, or anything of that sort is within
the scope of the work of this Constitutional Convention? It seems
to me we are here to modify a constitution as per the Omnibus Bill
and not for these questions or resolutions.

The President : I apprehend a memorial sent in in the nature
of a petition, may with perfect propriety be sent to the President
of the United States or any other department of government,
whether it be the act of a town meeting, or body of clergymen, or
anybody else.

Mr. Huntley: It is true that certain sections of our school
lands are being sought out by parties, with a view of securing a
portion of them, under the mineral laws, whether there is any legal
ground or not ; they are seeking to divert them from their proper
channel. We will say this section here, that Sioux Falls
would be near, another at Huron, and some others are mentioned
that there are now parties at work endeavoring to secure portions
of these sections as mineral lands because of their great value. This
is a matter that concerns this Convention and the rest of the State;
that if such attempts are in progress that we ought to bring about
such delay as will give the State an opportunity for defense. That
is about what this Memorial can do ; I hope it will pass and pass
unanimously.

M r. Davies: If there is a serious grievance it ought to be met,
but if we do it, let us do it properly ; if we are not sure the President
of the United States is the proper person to memorialize, let us seek
the Department of the Interior ; even the Department of Agriculture
would be nearer than the President. We might send to any depart-
ment, and in due course of time it would get to the right place al-
though not properly directed. But, Sir, if it takes its usual course,
we will be dead long before it ever reaches its destination. It will
reach the President who will refer it to the Committee, who will
pigeon-hole it ; or send it on its rounds through the departments.

Again, it is too general; it is the same objection that we have
to the general orders that they are something either good, bad or
indifferent. There are doubtless men, today that have developed

PROTECTING SCHOOL LANDS 93

mineral claims, and are today engaged in doing so, and those who
are, in good faith, ought not to be hindered in order to find out
who are not acting in good faith. I presume this affects the section
of the Black Hills more than any other; I would be pleased to know
something in reference to the amount of this grievance. In this
section of the Territory I do not apprehend it is very serious. When
we become a state, although we have our representatives in Wash-
ington, we cannot go there and in two minutes turn everything
upside down, and get things just as we would like them; those who
have been states long before we ever became a Territory have griev-
ances today that existed years and years. I dare say, if we were
to start today and land in Washington tomorrow morning and find
Congress in session that then we could not have our grievances
settled by next October, when we hope to be a state. Let us con-
sider whether it is practical ; let us consider whether it is feasible ;
let us consider whether it is possible before we go to the President
with such a memorial.

Mr. Wood: The Rapid City settlement was in advance of
the public surveys, and one. section was entered under what was
known as the Townsite Law, they filed upon onehalf of section thirty-
six, Township two, north of Range seven, east of the Black Hills
Meridian; this is now within the corporate limits of Rapid City.
Last year, or a year ago, coal was discovered in that vicinity, and
filings were made by two individuals on this land; two quarter
sections. There has been expended cash, at a cost of about six
thousand dollars as I understand it, arranging their diamond drill
and running the same for the purpose of going down to discover
coal. When I came away, they had reached a depth of something
over six hundred feet and no coal had been discovered; it was re-
ported that they had as yet discovered nothing. Whether this
is an attempt at defrauding the State out of its right 'and title to
this land is more than I can tell. Sure it is the efforts put forward
by these parties were fair, and didn't disclose to my mind any fraud
or idea, or intention to take any undue advantage nor to procure
title to property that they would not be entitled to receive under
the law. If there is any facts connected with the entries that will
suggest to anyone that they are to get the title unfairly, it has yet
to come to my knowledge.

I have heard of another case, I thinkj in^Turner County ; it

94 SOUTH DAKOTA DEBATES 1889

is this side of the river; but I think no application for title has
been made. It seems that Section 36, Township ninety-eight, Range
fifty-one, and Section sixteen, Township ninety-eight, Range fifty,
similar efforts are being made. I am not acquainted with the facts
of these cases ; I have suggested all that I know concerning the
lands. I will state the land that I have been informing the Con-
vention concerning is now very valuable ; worth from three to
five hundred dollars an acre.

Mr. Huntley: I think that those gentlemen who are thus
honestly pressing their claims for these mineral lands should not
suffer great hardship or further delay in receiving their patents.
I can remember that good Brother Sparks (who has been alluded
to) thought there were so many frauds out in Dakota, issued an
order that all patents should be delayed five years. I know that
my patent was delayed four years ; I didn't complain about it ; may-
be some people suffered hardship under that rule. We do not wish
to deprive anybody of their rights; we do not propose it in this
Memorial; simply that delay be had until the matter may be in-
quired into. I waited four years; I. waited patiently; I got my
patent all right. Perhaps I will say that I did think Mr. Sparks
was a little too exacting. I trust that this Memorial, if sent, will
not keep anyone waiting four years; I simply ask it to delay this
matter until we become a state. And certainly that is not an un-
just, nor is it an extraordinary request; and if there are those in
the Black Hills who have claims they are honestly presenting, and
who, under the laws, are entitled to patents to portions of those
coal lands, they will get their rights in due time. I believe this
Convention will be doing its duty by the people who sent us here,
to do all that lies in our power to prevent any of these frauds, that
have been attempted, or are being attempted.

Mr. Hole: Mr. President; there are some features of this
Memorial that certainly are correct. There are .some features that
I want to support but I do not want to support it as submitted.
It strikes me that if this should be submitted at all, it should be
submitted to the head of the department to which it belongs. That
is the only way to have any document of this kind acted upon in
time to be of any service. Again it seems to me that this Memorial
might be changed so that it can in no case work hardship. For
instance the Department of the Interior is provided with attorneys

PROTECTING SCHOOL LANDS 95

to protect just such cases. Let the Memorial ask that the attorneys
provided by the government protect our rights; be called upon in
these cases. Let the cases be specified and if necessary let the
school lands of Dakota be included so that whenever patents are
asked for upon lands that may possibly become school lands in
Dakota that that matter first be referred to the proper department
to protect our interests. Then we do not stultify ourselves with the
administration. We simply, by allowing this to go on, work justice
to all and hardship to none and we protect the school lands at the
same time. I think that should be the object of this Memorial.
In view of this, and wishing to support it in the main, I would move,
gentlemen, that this be referred back to the Committee for re-con-
sideration and amendment so as to meet that desired end.

Mr. Cooper: I think the Memorial is entirely unnecessary for
this reason: I do not believe for a moment that the school lands
can be fraudulently appropriated by any man in this Territory ;
certain steps have got to be taken by any person or class of persons
who desire to secure title to school lands under the mineral laws.
That is a matter of record; it is a matter that comes before the
public, they have to advertise during a certain time that they will
offer proof; they have to give their testimony under oath; and if
that land is in the vicintiy of Huron or Sioux Falls or Mitchell, I
do not believe that the real estate men of this country are going
to sit around and see them gobble up that land unless it is mineral
land, and if it is any distance from these towns the prices which
these men will have to pay for this land is far more than will be
required to buy the land within three or four miles of the best
cities in this State ; so I do not believe that it is necessary in the
first place for the reason I do not believe it is possible under the
existing order of things to secure any of this land fraudulently.
I believe that when the first attempt of that kind was made that
a hundred protests would be filed and then it .is the duty of the
special agents that are sent out here, to protect the interests of
the people and protect the interests of the government. One gentle-
man a few moments ago said, "We will see to it that unless these
lands are mineral lands that they shall not be appropriated"; while
the gentleman from Turner County (Mr. Huntley) says that he
made no complaint when he waited long weary years for his patent.
I must congratulate him that he is the only gentleman that I have

96 SOUTH DAKOTA DEBATES 1889

met that did not make complaint. I see in this action a reflection
upon the people of South Dakota ; it ought to be voted down.

Mr. Young: As a member of the Committee on Education
and School Lands I wish to make a word of explanation. In the
first place there is a difference under the United States statutes
between mineral lands and coal lands. The process for getting
a patent to coal lands is much shorter and less tedious than getting
a patent to mineral lands. The memorial calls attention only to
certain valuable sections of land in the mineral districts of the Ter-
ritory. The memorial calls attention only to certain valuable sec-
tions of land in certain agricultural districts of the Territory, con-
tiguous to towns and cities of considerable size. I would suggest
that it does not refer to any proceedings or applications for patents
on the part of miners in the Black Hills district at all. Let me say
with regard to the address of this memorial, that it seems to me
such a friend of Dakota as we have in the President of theU nited
States is pre-eminently the man to whom to send a petition from
such a body as the Constitutional Convention of South Dakota.

Mr. Davies: I want to explain myself in my position on this
resolution. I want to vote for it ; and the only object I had in view
was debate, and if it was presented in proper manner to Congress
or the proper department, I am not opposing this measure.

Mr. Humphrey: Just one word with regard to the amend-
ment that is moved; we have three departments; we have the
Executive, the Judiciary and the Legislative. The President of
the United States is at the head of that one department ; this comes
within that department. We present to him our memorial; he
will refer it to the proper bureau or department in his executive
department. This is the direct way of placing it before the man
who must act upon it. So much for its reference. Then in regard
to one other point. I wish to state this, that there is a misap-
prehension of the intention of the Committee that they are making
an attack upon any location ; but it is a well known fact that there
has ever been a disposition to take advantage and any advantage
that they can of the school lands. The action contemplated by
this memorial, does not hinder any man's rights under the law,
if any man has taken any steps within the law to secure title to
these lands this will not prevent him. This is simply a stay of
proceedings until the rights of Dakota can be secured.

PROTECTING SCHOOL LANDS 97

Mr. Caldwell: As a matter of information I would like to ask
whether or not in the event of a miner entering land which sub-
sequently proves to be not mineral, — does the mineral entry still
hold good the claim of title?

A Voice: No, Sir.

Mr. Caldwell: If it be the case, if it does not, it seems to me
that the interests of the State are not jeopardized as much as might
first appear. Of course, if the claimants to land shall be able to
prove by testimony, that the land actually is mineral, they are
certainly entitled to the operation of the mineral land laws. of the
country. And would be entitled to the possession of the land, but
if they do not prove to be mineral lands, according to the answer
which I have received, the title to the land reverts to the state, —
or will revert to the government and from the government to the
State, so that it does not seem to me cause for uneasiness if efforts
are to be attended, or if unsuccessful experiments are to be prose-
cuted. It does not jeopardize or limit, the title of the State or
whatever right it may have to the land.

Mr. Humphrey: I would like to ask the question, how can
the gentleman understand that it is the intent of this memorial to
deprive a party of the possession of the land? It is only intended
to limit the acquisition of the title; if he gets the patent of it after
a while, is he greatly inconvenienced? We do not propose to de-
prive a man of his rights to the land, simply to stay his procuring
final title.

Mr. Lee: I rise to ask a favor. In order that we may under-
stand what we are doing and the character and importance of this
resolution, I desire to hear the memorial read again.

(Clerk reads.)

The President: The question before the Convention is to
re-commit this report to the Committee on School Lands.

Mr. Wood: I call for the ayes and the nays.

The motion was lost by a vote of 28 ayes ; nays 32.

Mr. Humphrey: I move the previous, — the adoption of the
memorial.

Mr. Sherwood: I ask that the roll be called on the main
question.

Mr. Wood: I desire to call the ayes and noes on the main
question for the purpose of putting myself upon record as voting

98 SOUTH DAKOTA DEBATES, 1889.

no to a petition asking the President of the United States to do
what he under the law has no authority to perform.

The vote upon the previous question resulted as follows:

AYES: Atkinson, Berdahl, Boucher, Buechler, Caldwell, Clough
Cook, Cooper, Corson, Culver, Davies, Dickenson, Downing, Eddy,
Edgerton of Yankton, Fellows, Gifford, Harris, Hartley, Heninger,
Hole, Houlton, Huntley, Humphrey, Jolley, Lee, Matson, Mc-
Cusick, McGillycuddy, Murphy, O'Brien, Peck, Ramsey, Ringsrud.
Scollard, Sherwood, Smith, Spooner, Stoddard, Sterling, Stroupe,
Thompson, Van Tassel, Wescott, Wheeler, Whitlock, Williams,
Williamson, Wood of Spink, Zitka and Mr. President. (56).

NOES: Couchman, Diefendorf, Fowles Goddard, Kellam,
McFarland, Price and Wood of Pennington. (8).

The vote upon the adoption of the memorial resulted as
follows:

AYES: Atkinson, Berdahl, Buechler, Clough, Cook, Corson,
Culver, Davies, Dickinson, Downing, Eddy, Edgerton of Yankton,
Gifford, Houlton, Huntley, Humphrey, Lee, Matson, McGillycuddy,
O'Brien, Peck, Ringsrud, Sherwood, Smith, Spooner, Stoddard,
Sterling, Stroupe, Thompson, Wescott, Wheeler, Willis, Williams,
Williamson, Wood of Spink, and Mr. President. (36).

NOES: Boucher, Caldwell, Cooper, Couchman, Diefendorf,
Fellows, Fowles, Goddard, Harris, Hartley, Heninger, Hole, Jolley,
Kellam, McCusick, McFarland, Murphy, Price Ramsey, Scollard,
Van Tassel, Whitlock, Wood of Pennington, Zitka. (24).

So the memorial was declared passed.

The President: The special orders appointed by the Conven-
tion, yesterday, will now be considered unless otherwise ordered
by the Convention ; there are two special orders for this hour.

Mr. Corson: With the consent of the second, I will withdraw
my motion to reconsider.

The President : There being no objection it will be withdrawn ;
the Chair hears no objection, the motion is withdrawn.

Mr. Williams: If it is now in order, I have a motion which I
would like to present to the Convention and have it read by the
clerk, and upon such reading I will move the adoption of the
motion.

Mr. Joiiey: We are under a special order of business; unless
the Convention shall order otherwise, it cannot be heard, if that
refers to that special order of business it may be, otherwise it can-
not be received, — except by unanimous consent.

Mr. Williams: I withdraw it at this time.

FURTHER RF. FKKKXCES TO COMMITTEES 99

The President: The Clerk will read, — I have forgotten what
we reached yesterday.

A Voice: Article 22.

Mr. Humphrey: I would ask consent of the Convention for
an opportunity for the introduction of a motion that will dispose
of this matter without the re-consideration of the proposition
yesterday ; I would like to read it and would like to ask unanimous
consent for its introduction.

A Voice: I object.

The President: The Clerk will proceed.

Article 24, Prohibition.

The President: What committee will you have?

Mr. Atkinson: I move that it be referred to the Committee
on Rights of Married Women.

The President: It will be so referred unless objection is made,
— it is so referred,

Article 25, Minority Representation.

The President: It will be referred unless objection is made,
to the Committee on Amendments and Revision of the Constitution.

Schedule and Ordinance, — referred to the Committee on
Schedule and Ordinance.

Mr. Caldwell: I would object to this reference of the article
on Minority Representation.

The President: It is too late ; it is referred.

Form of Ballot, —

The President: Mr. Zitka, what will you have that referred
to?

Voices: To the Committee on Election, — Schedule.

The President: It will be referred to the Committee on
Schedule unless otherwise ordered by the Convention.

Mr. Clough: I move you that the motion by which Article
24 was referred to the Committee on Rights of Married Women be
reconsidered. Would not the people of this Territory take that
as an insult? I think that when it was so referred it was thought-
lessly done.

Mr. Atkinson: I disclaim any intention of making a joke of
this matter; I was in earnest; it belongs to that Committee, who
is more interested in these matters than married women?

100 SOUTH DAKOTA DEBATES 1889

Mr. Clough: I would add to my motion that it be referred
to the Committee on Schedule. &t5K

The President: It is moved that the reference of Article 24
to the Committee on Rights of Married Women, be re-considered
by the Convention and that it be referred to the Committee on
Schedule.

Which motion prevailed.

Mr. Williams: I have a motion here which I would like read
by the Clerk and then move its adoption by the Convention.

RESOLVED: That a committee of five be appointed by the
President of this Convention, whose duty it shall be to procure from
the custodian, the original Sioux Falls Constitution of 1885, and
carefully compare the same with the Omnibus Bill and report to
this Convention the changes therein authorized by the Omnibus
Bill together with recommendations.

Mr. Williams: I move the adoption of that resolution.

Mr. Caldwell: I simply desire to say that the appointment of
such a committee, with such powers as that, would practically
wipe out every committee that has been appointed ; it is the busi-
ness of each standing committee to compare such parts of the Con-
stitution as has been referred to it, and report to the Convention.

Mr. Williams: There was quite a discussion here yesterday
as to what was the proper method of procedure in this Convention,
in reference to this Sioux Falls Constitution. It was contended
by some that this Convention is authorized and that it is its duty
to submit an entire new Constitution if I understood the remark
of the gentleman from Minnehaha County I take it this Convention
is not yet lawfully in possession of the document before the people
on the I4th day of May nor that this Convention may come into pos-
session of this document in order to ascertain any further changes
ordered to be made by the Omnibus Bill. Now that these matters
may be brought before the Convention, and then referred to the
proper committee is the object of the resolution. I find on looking
through and reading a copy of the Constitution as presented in this
pamphlet there are more than twenty changes authorized and
there are other questions, that there is a difference of opinion.
That those changes may be pointed out and those doubtful changes
may be discussed is the purpose of this Committee, not to usurp
any power or duty of the other Committees, the purpose of this

POWERS OF COMMITTEES 101

Committee is only to point out and indicate the section and line
where changes are authorized; then these sections or portions will
be referred to the proper Committees which is already appointed
and not take away their power. It does seem to me that there
ought to be a committee whose duty it would be to designate in
a brief form the changes that are authorized and the powers that
are granted or prohibited so that the special committee to which
this subject of the Constitution is referred, may look into that
matter. I have asked for a committee of five that each subject
might be thoroughly discussed and disposed of in that way.

Mr. Price: I move that the motion be indefinitely postponed.

The motion coming to a vote was by rising vote, of forty ayes
to eighteen nayes declared indefinitely postponed.

Mr. Williamson: I move that the committees to which the
several articles and sections of this Constitution have been referred,
report to this Convention what changes, if any, must be made in
such articles and sections in order that the same may comply with
the provisions of the Omnibus Bill or Enabling Act.

Mr. Davies: I would like to ask the question for infoimation,
is not it already supposed that each committee is already author-
ized to report whether to make these changes or not and would
a report be considered complete without reporting to the Committee
on Phraseology all the changes required by the Omnibus Bill?
That is the understanding is it not ?

Mr. Williamson: My understanding is, that in this matter
this Convention has no power to make any changes whatever in
that Constitution except such as are required by the Enabling Act.
The question came up in the discussion yesterday as to what powers
was given to these committees by referring the several sections to
them. Leaving the committees without any instruction upon that
point leaves the implication upon the records of this Convention
that these committees have power to make other changes than such
as are contemplated in the t Enabling Act. The inference might
be drawn that this Convention assumed the power to make any
other changes. Of course none believe any such thing, but that
all the changes that can be made by this Convention, are only
such changes as are required by the Enabling Act. I cannot c6n-
ceive what duties the several committees to which these several
sections are referred can have, except simply to refer back to this

102 SOUTH DAKOTA DEBATES 1889

Convention what changes are required to be made, report what
those changes are, how these articles must be amended to conform
to the requirements of the Enabling Act. If they were left without •
any instruction whatever, it might lead to confusion and uncer-
tainty. I had intended if this original motion had been re-consid-
ered to offer this amendment to the original motion. I think now
we have instructed the committees in this respect, that not even
by implication do we attempt to assume any power and will amend
no article or section except asjiirected by the Omnibus Bill. Simply
instruct the committees about what their duties and powers are
in that matter.

Mr. Humphrey: I am in favor of the motion ; of the principles
embodied in the motion, and if the motion to reconsider the refer-
ence of the Constitution had not been withdrawn I should have
presented a similar" motion to this Convention ; it was the motion
that I asked the consent to present ; it embodied the same prin-
ciples as that read to you with the exception that in its wording it
is a little more general, and that we may choose between the two,
I will move it as a substitute ; permit me to read it.

Moved that the several committees provided for by the Rules
of this Convention be directed to proceed to the discharge of their
several duties, and report to this Convention only such changes and
amendments to the Constitution as in their judgment are directed
by, or are necessary in order to comply with the provisions of the
Enabling Act, known as the Omnibus Bill, under the authority
of which we are here convened, and by the provisions of which we
must be guided and controlled.

Mr. Davies: Another question, I would ask, it is my understand-
ing that the report of these committees comes before this Conven-
tion and that before that report is disposed of at all, there must be
a vote of this Convention, either .for or against it? If that is the
understanding of the Convention, quite a number of members will
be satisfied on this point. Quite a number seem to doubt, or to be
at sea whether these reports are final, as I understand it the Con-
vention as a body, will act upon each report before it is authentic.
Am I right in this?

Mr. Williamson: I am perfectly willing to accept the substi-
tute of the gentleman from Faulk County.

Mr. Caldwell: I think that there is no gentleman upon the

PmYKkS OF Co.MMITTKKS TO R K \ 'I S I •: 103

floor who will dispute the proposition that there can nothing go
into this Constitution, as the one formed by this body, which does
pass by a majority vote of this body, and that the action of the
various committees are merely preliminary, the same as any other
committee report has to be adopted before it is the action of the
body.

Mr. Wood: It occurs to me that this resolution is simply to
instruct the committees how to proceed. I do not know whether
the committees that I form a part of, understand their business or
not, but the chances are we will come somewhere near it and the
other committees .will perhaps understand their duties about as
well as they will be informed by this resolution or any other of its
kind. We ought not to pass a resolution of this character.

The interpretation of the resolution is simply exponent of
the law and our convictions and what we' propose to do here.

Mr. Price: Mr. Wood (of Pennington) expresses my views
exactly upon this question. This Convention has been duly or-
ganized for business ; we have a distinguished gentleman to preside
over its deliberations; we have confidence in the honesty, integrity
and competency (if you please) of the members who constitute this
body, and I think as the President of this Convention stated yes-
terday he has made no mistake in the selection of his committees.
These matters have been referred to these committees for con-
sideration, and as has well been stated by the gentleman from
Minnehaha County no part of this Constitution can become a part
of the Organic law of this new State unless it is adopted by a ma-
jority vote of this Convention, and I say, Sir, without any disrespect
to the gentleman who has introduced this resolution that it is an
insult to the integrity, and competency and honesty of the gentle-
men who compose this Convention, especially the committees to
whom it has been referred. This resolution ought not to prevail.

Mr. Lee: I move that the resolution be laid upon the table.

Which motion prevailed.

Mr. Boucher: I have a resolution I wish the Clerk would read.

Clerk reads as follows:

That the people of the State of South Dakota hereby ordain
and declare:

FIRST: That pert'ei t toleration of religious sentiment shall
be secured, and that no inhabitant of this state shall ever be mo-

104 SOUTH DAKOTA DEBATES 1889

lested in person or property on account of his or her mode of re-
ligious worship.

SECOND: That the people inhabiting this State do agree and
declare that they forever disclaim all right and title to the un-
appropriated public lands lying within the boundaries thereof,
and to all lands lying within said limits owned or held by any
Indian or Indian tribes, and that until the title thereto shall have
been extinguished by the United States, the same shall be and re-
main subject to the disposition of the United States, and the said
Indian lands shall remain under the absolute jurisdiction and
control of the Congress of the United States, that the lands belong-
ing to citizens of the United States residing within this State shall
never be taxed at a higher rate than the lands belonging to residents
of this State; that no taxes shall be imposed by this State on lands
or property therein belonging to, or which may hereafter be pur-
chased by the United States or reserved for its use. But nothing
herein shall preclude this State from taxing, as other 'lands are
taxed, any lands owned or held by any Indian who has severed
his tribal relations, and has obtained from the United States or
from any person a title thereto by patent or other grant, save
and except such lands_ as have been or may be granted to any
Indian or Indians under any act of Congres? containing a pro-
vision exempting the lands thus granted from taxation but that
all such lands shall be exempt from taxation by this State so long
and to such extent as such act of Congress may prescribe.

THIRD: That provision shall be made for the establishment
and maintenance of systems of public schools, which shall be open
to all the children of the State and free from sectarian control.

Mr. Corson: I move that that be referred to the Committee
on Schedule and Ordinance.

Mr. Sherwood: I move that it be referred to the Committee
on Federal Relations ; I propose it as an amendment to the gen-
tleman's motion.

Which motion prevailed and the resolution was referred to
the Committee of Federal Relation. By the President.

Mr. Clough: I have a little matter in the nature of a com-
munication or resolution from a Sioux Falls Preacher's Meeting, —
which upon being read will explain itself.

Clerk reads:

To THE SOUTH DAKOTA CONSTITUTIONAL CONVENTION:
GENTLEMEN: —

This certifies that the following resolution: "Resolved that
we call upon the Constitutional Convention to be held at Sioux
Falls, July 4th, 1889, to be put about the election to be held in

SUGGESTIONS FOR SCHEDULE AND ORDINANCE 105

October, such safeguards as shall insure an honest vote and to
prevent colonization of voters, and we also ask that the election
of state officers be, if possible, put on a different day from the vote
on the Capital and Constitution", was unanimously passed at the
Sioux Falls District Meeting of the Dakota Conference, held at
Parker, May 21st to 23rd, 1889. This District includes twenty-
three pastoral charges in the southern part of your rising com-
monwealth.

L. HARTSOUGH, President.

The President: The communication will be referred to the
Committee on Schedule.

Mr. Sherwood: I would like to have the original motion, as
amended, just preceding this last communication.

The President: The amendment made was in the nature of
a substitution, — in effect a substitution clearly, but if the gentle-
man prefers the original motion put as amended, I will put it ; I
considered it as a substitute, and so ordered the reference.

Mr. Sterling^. I move we do now adjourn.

Which motion prevailed.

NINTH DAY.

Sioux Falls, S. Dak., July 12, 1889.

Two o'clock P. M .

The Convention re-assembled pursuant to adjournment.

President Edgerton in the Chair.

Prayer by the Chaplain:

We thank Thee, oh God, our Heavenly Father, in that Thou
hast been with us and hast kept us. We ask Thee, that in this
session Thou wilt give us Thy spirit that our acts may be pure
and our purposes of Thine own prompting, and that the result of
this session may be that which shall bring happiness to future
generations and joy and glad tidings. We ask it in Jesus' name.

AMEN.

Reading of the Journal.

At this point the President completed the regular call of busi-
ness and asked -what is the further pleasure of the Convention.

Mr. Sherwood: I do not know whether this is the proper
place to present a motion for the re-consideration of the matter
that transpired in yesterdays proceedings or not. A matter came
up that, upon examination, was different from what I supposed
it read; it was in relation to the memorial passed yesterday. I
desire to say I am in favor of the memorial. I observe in the last
clause thereof something I had not before seen, desire to read andthen
if it is proper to reconsider it and offer an amendment by inserting
three words. In the last paragraph of the memorial, beginning
"Therefore your memorialists respectfully" in the fifth line thereof
I desire to move the re-consideration of the memorial to insert into
it after the word "stayed" the words "upon school sections". I
think the momorial covers the ground those who voted for it in-
tended it should cover, and more too, in this, that it is within the
scope of it to suspend action, upon all lands; I think the intention
was the suspension of action upon the issuance of patents upon

108 SOUTH DAKOTA DEBATES 1889

school sections. With a view of moving that amendment, I move
you, Sir, that we re-consider the vote by which we adopted the
memorial yesterday.

(Motion seconded.)

Mr. Humphrey: I would say in my judgment, that that is
an error in the copying of the memorial in the Committee Room.
Or else at the printing office; it is my judgment it was the intention
of the Committee that those words be there; I understood it to
be read that way when it was read. In reading it today upon our
tables I find it to be the other way ; I am strongly in favor of putting
those words in.

Mr. Corson: It seems to me that that appears in the memorial,
taking the first part of it; it specifically states "that several of the
most valuable sections of lands reserved for the use of the State for
school purposes.

Mr. Davies: It is incumbent upon the President to order that
change to be made as it was stated that that was the intention of
the Committee; it appears to be a clerical error; I would judge it
would be competent to have the minutes corrected the same in
that respect as in other respects; it was the intention and others
so understood it ; it was a clerical error and I judge it would be
competent for the Chairman to order the Clerk to make that cor-
rection without any objection.

Mr. Hole: That was one point of our discussion yesterday,
that is the point I made and the reason that I opposed it ; I think
that if it is corrected that it ought to be by vote because I thought
they did not understand it yesterday.

Mr. Wood: I was going to offer an amendment to the motion
that this motion be to reconsider for all purposes ; it is confined to
one particular section; I move to amend, that if it be reconsidered
that it be for all purposes. I think that is the rule, by the way.

Mr. Sherwood: My object in voting in favor of .the motion
might be not to reconsider the whole but only for this one section ;
I do not know whether it is competent for those who voted against
a question to vote to reconsider it entirely.

The President: Will the gentleman from Pennington call
my attention to the rule? I take it under our rule anyone can
make this motion whether he voted for or against.

Mr. Jolley: The gentleman from Pennington has forgotten

RECONSIDERATION" OF MEMORIAL 109

the rule; a person voting in the majority can vote to re-consider
on that day or on the next two days; the parliirentary rule is very
clear; in Legislative Assembly it would place it upon the third
reading.

The President: My own impression was, that when recon-
sidered, it would then have been upon its final passage and subject
to all amendments that would be proper at such a stage of pro-
ceeding; I had understood that a different opinion prevailed. I
wanted my attention called to the rule otherwise my opinion was
that as soon as reconsidered it was before the Convention the same
as it was upon its original passage.

Mr. Humphrey: The1 intention of the committee I believe
to be fully manifest ; the omission would be a clerical one in the
Committee Room. If it is not competent to have it inserted here
without the consent of the House, believing the memorial fully
states the ground, I move the motion to reconsider it lay upon the
table.

Which motion upon a division of the House was adopted by
a vote of thirty-five ayes, to twenty-seven nayes.

Mr. McCusick: I ask the Convention to excuse me from fur-
ther attendance upon the Convention, owing to public duties
which I have at home.

The President: The gentleman from Roberts will be excused
if the Chair hears no objection. The Chair hears none.

Mr. Williams: asked and was granted leave of absence until
Monday.

Mr. Huntley: I would like to call the attention of the Con-
vention, to the expenses of the Convention; the Committee on Ex-
penditures asks that the members hand to some member of the
Committee the distance travelled by them in coming to the Con-
vention, and at as early a date as possible that the Committee may
discharge its duties and be prepared for its final work.

Mr. Eddy was upon his own request excused until Tuesi lax-
morning.

On motion of Mr. Sherwood the Convention stood adjourned
until Saturday afternoon. July 13.

TENTH DAY.

Sioux Falls, Dakota, July 13th, 1889.

Two o'clock P. M.

Convention re-assembled pursuant to adjournment.

Convention calle i to corder by Mr. Corson, of Lawrence.

Clerk, upon instructions by the Chairman, read the following
communication. ^

Sioux Falls, Dak., July 12th, 1889.
JUDGE CORSON: —

I shall be absent from Saturday until Monday. Will you
please act in the meantime as President of the Constitutional
Convention.

A. J. EDGERTOX.

The Chaplain: We thank Thee, oh God, our Heavenly
Father for all Thy manifest kindness toward us. We ask Thee
that Thy holy spirit may this day thoroughly imbue us. Deal
graciously with all connected with us; and those of our number
who are absent ; bring us together with a purpose and full deter-
mination to do just the thing for the best interest of those whom
we represent. Do Thou guide our steps and lead us on the morrow
that we conduct ourselves as becoming representatives; as those
worthy to be called children of the living God. We ask it in Jesus'
name.

AMEN.

The Journal of the preceding day was read and approved.

The President pro tern proceeded with the regular call of the
order of business, without interruption.

Mr. Craig: I am requested to present to this Convention a
design of the great seal of South Dakota, executed by a Chicago
firm, and ask that it be referred to the Committee on Seal.

The Chairman: It will be so referred.

Mr. Young: It is quite evident that there is not a quorum
present, we cannot transact any business; I move we adjourn.

Which motion prevailed.

TWELFTH DAY.

Sioux Falls, Dakota, July 15; 1889.

Two o'clock P. M.

The Chaplain: Our Heavenly Father, we thank Thee for
the privilege that we have had of resting on the Sabbath Day
and of hearing of Thy word from which we may gain wisdom.
Help us now to remember that the fear of the Lord is the beginning
of wisdom and if we have the right spirit toward God and men we
shall surely prosper and do just those things that will be accep-
table in Thy sight and redound to our good and the glory of our
Father who liveth forever. Hear us for Christ's sake.
AMEN.

Mr. Dickinson: I move that the roll be called to ascertain
if there be a quorum present.

Motion is seconded.

Mr. Humphrey: I move that the motion be laid upon the
table.

Which motion prevailed.

Journal of Saturday's session was read and approved.

The order of business fo-r the day was gone through by the
President pro tern.

Mr. Humphrey: I offer the following resolution and move its
adoption.

Resolved that it is the sense of this Convention that the Stand-
ing Committees should report with as much promptness and dis-
patch as the proper discharge of their duties will permit.

Which motion prevailed.

Mr. Humphrey: The purpose of the resolution is this: The
Engrossing and Enrolling Committee have a laborious task before
them; several of these committees have but little duty to perform,.
a large portion there will be no alteration or amendment and so

REPORTS OF COMMITTEES 113

rapidly as these committees report this Engrossing and Enrolling
Committee can proceed with their labors and thus greatly expedite
the labors of the Convention.

On motion of Mr. Humphrey, the Convention was adjourned.

THIRTEENTH DAY.

Sioux Falls, Dakota, July 16th, 1889.
Two o'clock P. M.

Convention re-assembled pursuant to adjournment.
President Edgerton in the chair.

The Chaplain: Oh Lord, our God, we bless and adore Thy
name this day. In our finiteness and ignorance, we turn to
Thine infinite love and wisdom for strength and inspiration. Do
Thou guide our deliberations this day, and may everything that
is done redound to Thy glory, and the uplifting of mankind. This
we ask for Jesus' sake.

AMEN.

The President: On last Friday Mr. McCusick asked leave
of absence for the balance of the session; that leaves no member
from that district on the Committee on Apportionment and unless
there is objection by the Convention, I will appoint Mr. Wescott
in his place from that district. The Chair hearing no objection,
appoints Mr. Wescott to take the place of Mr. McCusick on the
Committee on Congressional and Legislative Apportionment.

Mr. Willis: I offer the following resolution:

Resolved, that the Judiciary Committee be, and are, hereby
requested to examine and report to the Convention whether or
not in their judgment any portion of the $20,000 appropriation
may be used to defray the expenses of the May or October elections.

Mr. Davies: I ask that the resolution be read again.

The resolution was adopted,

M r. Wescott : I move you that the roll of standing committees
be read in order that progeess may be reported.

116 SOUTH DAKOTA DEBATES 1889

The President: If there is no objection the clerk will read
the list of standing committees.
Which was done.

The Committee on Executive and Administrative reported
as follows:

To THE PRESIDENT OF THE CONSTITUTIONAL CONVENTION OF
SOUTH DAKOTA.

We, the undersigned, the duly appointed Executive and Ad-
ministrative Committee of this Convention, do hereby respectfully
report that we have carefully examined Article IV of the Consti-
tuiton of the proposed state of South Dakota, approved by the
voters thereof, May 14th, 1889, and find that no change is neces-
sary or proper in said Article IV, in order to comply with the pro-
visions of the Enabling Act, passed by the Congress of the United
States.

C. R. WESCOTT,
R. C. ANDERSON,
J. DOWNING,
W. G. DICKENSON,
W. H. MURPHY.
Sioux Falls, July 1889.

Mr. Sterling: I move you that the report of the Executive
and Administrative Committee be made the special order for to-
morrow at the completion of the regular call of the business.
(Seconded.)

Said motion prevailed.

The Committee on Amendments and Revision of the Con-
stitution made the following report

Sioux Falls, Dakota, July 16, 1889.
MR. PRESIDENT:

Your Committee on Amendments and Revision of the CoYi-
stitution, to whom was referred Article XXIII of the Constitution,
beg leave to report that we have examined said Article and find
no change necessary in order to make the same conform to the
Enabling Act, and we therefore recommend that the same be
submitted as originally drawn.

L. T. BOUCHER,
J. DOWNING,
WM. COOK,
WM. STODDARD,
C. J. B. HARRIS.

Mr. Boucher: I move that the report of the Committee on
Amendments to the Constitution be adopted. (Seconded.)

SPECIAL ORDERS 117

Mr. Dickinson: I offer the substitute that it be made the
special order for tomorrow afternoon. (Seconded.)

Mr. Sterling: I believe it would be good policy to make all
these reports, — although it will not take long to consider them, —
to make them a special order for the next day after they are read ;
we will then have a better opportunity to weigh all the provisions
of these various articles and it will prevent any undue haste in
adopting the several sections.

The substitute to the motion to adopt the report was adopted
by vote of the Convention.

Mr. Van Tassel: I move we do now adjourn.

The motion prevailed and the Convention stood adjourned
until tomorrow, July 17, 1889.

FOURTEENTH DAY.

Sioux Falls, Dak., July 17, 1889.

Two o'clock P. M.

Convention re-assembled pursuant to adjournment.

President Edgerton in the cha:r.

Prayer by Mr. Clough as follows:

Almighty God, our Heavenly Father, we thank Thee for the
privilege of greeting Thee this day. Now we ask of Thee wisdom
and understanding, for the duties of this hour. Give us discretion
in all our affairs. May Thy blessing attend us for Christ's sake.

AMEN.

Journal of the preceding day was read and no corrections
suggested.

The President: I have a long communication here with
reference to the liquor question, and Prohibition ; I refer it to the
Committee on Schedule.

Also a ten page communication in reference to the name of
the State; I refer it to the Committee on Name and Boundary.

Communication from T. D. Kanouse was read to the Conven-
tion as follows:

Sioux Falls, S. D. July 15th, 1889.

To THE HONORABLE PRESIDENT AND MEMBERS OF THE SOUTH DA-
KOTA CONSTITUTIONAL CONVENTION, IN SESSION AT sioux

FALLS:
GENTLEMEN: —

If it would be your pleasure as a body, or as individuals, at
any time during your sojourn in the city to visit this institution,
you have my most cordial invitation so to do. With highest
consideration, Very respectfully,

THEO. D. KANOUSE, Warden.

The President: Reports of standing committees; the Clerk
will read the list as ordered, yesterday.

120 SOUTH DAKOTA DEBATES 1889

Mr. Hole: Before we commence reading this list, I would
suggest that the Chairman of the various committees report their
idea when their reports will come before the Convention. The
Schedule Committee must necessarily somewhat depend upon the
condition of the other work and would like the information.

Mr. Jolley: Under the order of business Reports of Standing
Committees, the Committee on Rules without making a formal
report, have drawn up a form and suggested that each Committee
use this form in making their report to this Convention. The
form of the report is now in the hands of the gentleman from
Hutchinson. It is substantially as follows:

Sioux Falls, Dak., July , 1889.

MR. PRESIDENT:

Your Committee on to whom was

referred Section , entitled , have con-
sidered the same and have compared said section with the Sioux
Falls Constitution and the Act of Congress known as the "Omnibus

Bill" and have instructed me to report the following section

of Article and that the same is in accordance with the

Sioux Falls Constitution and the changes thereto authorized by
the "Omnibus Bill".

The Committee on Rules thought the reports had better be
uniform and that the record had better be made upon the Journal
of this Convention at what date they passed.

Under the call of business Reports from Standing Committees,
the following reports were made:

The Judiciary Committee submitted the following report:
MR. PRESIDENT:

Your Committee on Judiciary, to whom was referred the
resolution requesting said Committee to examine and report to
the Convention whether or not, in their judgment, any portion
of the $20,000 appropriation may be used to defray the expense
of the May or October elections, beg leave to report: That it is
the judgment of this Committee that no part of the said appropria-
tion can be used for the purpose of defraying the expenses of such
elections.

THOMAS STERLING,
H. A. HUMPHREYS,
CHAUNCEY L. WOOD,
W. T. WILLIAMS,
C. G. SHERWOOD,
S. G. RAMSEY,
C. J. B. HARRIS,

RIGHTS OF MARRIED WOMEN 121

GEO. C. COOPER,
H. F. FELLOWS,
H. W. EDDY,
S. B. VAN BUSKIRK.
of the Judiciary Committee.

The Committee on Rights of Married Women submitted their
report as follows:
MR. President:

Your Committee on Rights of Married Women, to whom was
referred Section (5) of Article (21) twenty-one, entitled, "Rights
of Married Women", have considered the same and have compared
said section with the Sioux Falls Constitution and the act of Con-
gress known as the "Omnibus Bill", and have instructed me to
report the following as Section Five (5) of Article (21) Twenty-one
of the Constitution, and that the same is in accordance with the
Sioux Falls Constitution and the changes thereto authorized by
the Omnibus Bill.

Rights of Married Women.

SECTION 5. The real and personal property of any woman
in this State, acquired before marriage, and all property to which
she may after marriage become in any manner rightfully entitled
shall be her separate property, and shall not be liable for the debts
of her husband.

L. V. WILLIS,

Chmn. of Com.
S. A. WHEELER,

T. F. DlEFEXDORF,

T. W. THOMPSON,
J. G. DAVIES,
DAVID HALL.

Mr. Spooner: I move that the report of the Committee on
the Rights of Married Women be adopted. (Motion seconded.)

Mr. Sherwood: I move as an amendment that the report
be made a special order for tomorrow.

Which motion prevailed.

Under the order of business, Presentation of Resolutions and
the Propositions Relating to the Constitution:

Mr. Sherwood: I have a resolution here I would like to offer.
Which was read by the Clerk as follows:

WHEREAS: It appears that several members of the Consti-
tutional Convention, which convened in the city of Sioux Falls
on the 8th day of September, A. D. 1885, did not, through error
or accident, sign the Constitution adopted on November 3rd, 1885
and,

WHEREAS: Some of the said members of said 'Convention

122 SOUTH DAKOTA DEBATES, 1889.

who have been heretofore prevented from signing said Constitution,
are now desirious of signing the same.

RESOLVED: That the President of this Convention be au-
thorized to permit any duly and elected and qualified member of
said Constitutional Convention of 1885, who has not heretofore
signed said Constitution to attach his signature to the same.

The President: Do you ask its reference to the Judiciary
Committee ?

Mr. Sherwood: Yes, Sir.

The President: It is so referred.

The President: The hour has arrived for the special order;
the consideration of the two reports.

Mr. Sherwood of Clark, called to the chair.

Mr. Dickinson: I move that the report of the Committee on
Executive and Administrative and the Committee on Amendments
and Revision of the Constitution, and made a special order yester-
day, be re-committed to the respective Committees in order that
they may be made to conform to the uniform form that is recom-
mended by the Committee on Rules.

The Chairman: Do I understand that refers to all the business
made the special order for today.

Mr. Dickenson: Yes, Sir; those two reports.

Said motion prevailed.

- Mr. Sterling I move you that the Committee now arise
and report the action of the Committee.

The Chairman: Do I understand we are now in Committee
of the Whole?

Mr. Sterling: If I am mistaken I withdraw the motion.

Mr. Lee: I do not so understand it, that we were in Com-
mittee of the Whole.

Mr. Young: If it is in order I would introduce the following
resolution:

WHEREAS: The Fiftieth Congress, by the Enabling Act for
South Dakota, North Dakota, Montana and Washington, make
several new grants of lands, moneys and buildings to South Dakota,
upon its admission into the Union, to be used exclusively for
specific purposes ; and

WHEREAS: It is a mooted question with some members of
the Convention as to whether it is obligatory on this Convention
and fitting for it to acknowledge and accept said grants by a reso-
lution of the Convention. Therefore, be it

ACCEPTANCE OF LAND GRANTS 123

RESOLVED: That the Committee on Judiciary be requested
to report on the necessity of such a resolution.

Mr. Jolley: I rise to the point of order, over the gentleman
from Lake ; we are in Committee of the Whole.

Mr. Wood: We are not in Committee of the Whole.

Mr. Jolley: Did the Chairman rule that? I subside. (Laugh-
ter.)

The resolution as presented by the gentleman from Lake,
was adopted.

The Chairman: It is referred to the Committee on Judiciary.

Mr. Sterling: I move we adjourn. (Motion duly seconded.)

Mr. Spooner: I rise to the point of order. Are we considered
as in Committee of the Whole? (Laughter.)

The Chairman: The Chair will state that perhaps he had
better be advised in regard to this matter. &

Mr. Spooner: There is a difference of opinion among the
members.

The Chairman: I understood that no special motion to go
into Committee of the Whole was made ; that is what I passed upon ;
that no special motion was made to go into Committee of the
Whole.

Mr. Spooner: Does the Chair pass upon the question whether
we are in Committee of the Whole or not?

The Chairman: I think we are.

Mr. Spooner: I move that the Committee rise.

Mr. Edgerton, of Davison: There may be some misappre-
hension; I understand that there were special orders to be con-
sidered in the Convention today ; the time had arrived for those
special orders, and we commence the consideration of the special
orders. I called the gentleman from Clark to the Chair as presiding
Officer of the Constitutional Convention.

The Chairman: The motion to adjourn is before the Convention

Which motion prevailed, and the Convention was declared
adjourned.

FIFTEENTH DAY.

Sioux Falls, Dakota, July 18th, 1889.

Two o'clock P. M.

Pursuant to adjournment, the Convention was called to order
by the President.

Prayer was offered by Mr. Huntley as follows:

O Lord God, our Heavenly Father, we thank Thee for the
privilege of once more taking up our duties for this day, We
beseech of theethat Thou wilt guide and direct us in all that we
undertake and that our labors this day may be pleasing in Thy
sight and that we may do faithfully the duties Thou hast committed
to us. Guide us by Thy spirit, bless us with Thy favor and when
we have done, receive us back to Thyself to enjoy Thine everlasting
favor. These blessings we ask for Christ's sake.

AMEN.

The minutes of the preceding day were read and approved.

At this point the call of the standing committees was proceeded
with.

Mr. Humphrey: I did not hear the call of the Committee
on Education and School Lands. Their reports' are completed ;
they will be read tomorrow.

Under the Order of Business, reports of Standing Committees,
the following reports were submitted.

Sioux Falls, South Dakota, July 18th, 1889.
MR. PRESIDENT: —

Your Committee on Compensation of Public Officers to whom
was referred Section 2, of Article XXI, have considered the same
and have compared said Section 2 of Article X*XI, with the Sioux
Falls Constitution and the Act of Congress, known as the "Omnibus
Bill", and have instructed me to report the following as Section
2, of Article XXI of the Constitution, and that the same is in ac-
cordance with the Sioux Falls Constitution and the changes author-
ized by the Omnibus Bill.

SECTION 2. COMPENSATION OF PUBLIC OFFICERS. — The Gov-

126 SOUTH DAKOTA DEBATES 1889

ernor shall receive an annual salary of two thousand five hundred
dollars; the Judges of the Supreme Court shall each receive an
annual salary of two thousand five hundred dollars; the Judges
of the Circuit Court shall each receive an annual salary of two
thousand dollars; provided that the Legislature may, after the
year one thousand eight hundred and ninety, increase the annual
salary of the Governor and each of the Judges of the Supreme
Court to three thousand dollars, and the annual salary of each of
the Circuit Judges to two thousand five hundred dollars.

The Secretary of State, State Treasurer, and State Auditor,
shall each receive an annual salary of one thousand eight hundred
dollars; the Commissioner of School and Public Lands shall each
receive an annual salary of one thousand eight hundred dollars;
the Superintendent of Public Instruction shall receive an annual
salary of one thousand eight hundred dollars ; the Attorney General
shall receive an annual salary of one thousand dollars; the com-
pensation of Lieutenant Governor shall be double the compensa-
tion of a State Senator.

They shall receive no fees or perquisites whatever for the per-
formance of any duties connected with their offices. It shall not
be competent for the Legislature to increase the salaries of the
officers named in this article, except as herein provided.
Respectfully submitted,

H. M. WILLIAMSON*.

Chairman
I. R. SPOONER,
J. A. FOWLES,
CHAUNCEY L. WOOD.

Sioux Falls, South Dakota, July 18, 1889.
MR. PRESIDENT: —

Your Committee on Public Accounts and Expenditures, to
whom was referred Article XII, entitled, "Public Accounts and
Expenditures," have considered the same and have compared said
Article XII with the Sioux Falls Constitution and the Act of Congress
known as the "Omnibus Bill", and have instructed me to report
the following as Article XII of the Constitution and that the same
is in accordance with the Sioux Falls Constitution and the changes
thereto authorized by the Omnibus Bill.
ARTICLE XII.

PUBLIC ACCOUNTS AND EXPENDITURES.

SECTION 1. No money shall be paid out of the Treasury
except upon appropriation by law and on warrant drawn by the
proper officer.

SEC. 2. The general appropriation bill shall embrace nothing
but appropriations for ordinary expenses of the executive, legis-
lative and judicial departments of the State, the current expenses
of state institutions, interest on public debt, and for common schools

PUBLIC ACCOUHTS AND EXPENDITURES 127

All other appropriations shall be made by separate bills, each em-
bracing but one object, and shall require a two-thirds vote of all
members of each branch of the Legislature.

SEC. 3. The Legislature shall never grant any extra com-
pensation to any public officer, employe, agent or contractor after
the services shall have been rendered or the contract entered into,
nor authorize the payment of any claims or part thereof created
against the State, under any agreement or contract made without
express authority of law, and all such unauthorized agreements or
contracts shall be null and void; nor shall the compensation of any
public officer be increased or diminished during his term of office;
provided, however, that the Legislature may make appropriations
for expenditures incurred in suppressing insurrections or repelling
invasions.

SEC. 4. An itemized statement of all receipts and expen-
ditures of the public moneys shall be published annually in such
manner as the Legislature shall provide, and such statement shall
be submitted to the Legislature at the beginning of each regular
session by the Governor with his message.

A. 0. RINGSRUD,
J. V. WILLIS,
M. R. HENINGER,
J. G. DAVIES,
H. M. WILLIAMSON
JOHN SCOLLARD,
W. T. WIDLIAMS.
Sioux Falls, Dak., July, 1889.
MR. PRESIDENT: —

Your Committee on Amendments and Revisions of the Con-
stitution, to whom was referred Article 23, entitled, "Amendments
and revisions of the Constitution," have considered the same and
have compared said article with the Sioux Falls Constitution and
the act of Congress known as the "Omnibus Bill", and have in-
structed me to report the following as Article XXIII of the Con-
stitution, and that the same is in accordance with the Sioux Falls
Constitution and the changes thereto authorized bv the Omnibus
Bill".

ARTICLE XXIII.

AMENDMENTS AND REVISIONS OF THE CONSTITUTION.

SECTION 1. Any amendment or amendments to this Con-
stitution may be proposed in either house of the Legislature and
if t lie same shall be agreed toby a majorityof the members elected
to each of the two houses, such proposed amendment or amend-
ments shall he entered in their Journals, with the yeas and nays
taken thereon, and it shall be t he duty of the Legislature to submit
such proposed amendment or amendments to the vote of the
people at the next general election. And if the people shall up-

128 SOUTH DAKOTA DEBATES 1889

prove and ratify such amendment or amendments by a majority
of the electors voting thereon, such amendment or amendments
shall become a part of this Constitution, provided, that the amend-
ment or amendments so proposed shall be published for a period
of twelve weeks previous to the date of said election, in such a
manner as the Legislature may provide; and provided further,
that if more than one amendment be submitted they shall be sub-
mitted in such a manner that the people may vote for or against
such amendments separately.

SEC. 2. Whenever two-thirds of the members elected to each
branch of the Legislature shall think it necessary to call a con-
vention to revise this Constitution they shall recommend to the
electors to vote, at the next election for members of the Legislature,
for or against a Convention ; and if a majority of all the electors
voting at said election shall have voted for a Convention, the
Legislature shall, at their next session, provide by law for calling
the same. The Convention shall consist of as many members as
the House of Representatives and shall be chosen in the same
manner, and shall meet within three months after their election
for the purpose aforesaid.

Sioux Falls, South Dakota, July 18, 1889.
MR. PRESIDENT: — -

Your Committee on Corporations Other Than Banking or
Municipal", to whom was referred Article XVII, entitled "Cor-
porations", have considered the same and have compared said
Article with the Sioux Falls Constitution and the Act of Congress
known as the "Omnibus Bill" and have instructed me to report
the following as Article XVII of the Constitution and that the
same is in accordance with the Sioux Falls Constitution and the
changes therein authorized by the Omnibus Bill.
ARTICLE XVII.

CORPORATIONS.

SECTION 1. No corporation shall be created or have its charter
extended, changed or amended by special laws except those for
charitable, educational, penal or reformatory purposes, which are
to be and remain under the patronage and control of the State;
but the Legislature shall provide by general laws for the organiza-
tion of all corporations hereafter created.

SEC. 2. All existing charters, or grants of special or exclusive
privileges, under which a bona fide organization shall not have
taken place and business been commenced in good faith at the
time this Constitution takes effect, shall thereafter have no validity.

SEC. 3. The Legislature shall not remit the forfeiture of the
charter of any corporation now existing nor alter or amend the same
nor passany other general or special law for the benefit of such cor-
poration, except upon the condition that such corporation shall

CORPORATIONS 129

thereafter hold its charter subject to the provisions of this Consti-
tution.

SEC. 4. The exercise of the right of eminent domain shall
never be abridged or so construed as to prevent the Legislature
from taking the property or franchises of incorporated companies
and subjecting them to public use, the same as the property of
individuals and the exercise of the police power of the State shall
never be abridged or so construed as to permit corporations to
conduct their business in such a manner as to infringe the equal
rights of individuals or the general well being of the State.

SEC. 5. In all elections for directors or managers of a cor-
poration, each member or shareholder may cast the whole number
of his votes for one candidate, or distribute them upon two or more
candidates as he may prefer.

SEC. 6. No foreign corporation shall do any business in this
State without having one or more known places of business and an
authorized agent or agents in the same upon whom process may
be served.

SEC. 7. No corporation shall engage in any business other
than that expressly authorized in its charter, nor shall it take or
hold any real estate except such as may be necessary and proper
for its legitimate business.

SEC. 8. No corporation shall issue stocks or bonds except
for money, labor done, or money or property actually received;
and all fictitious increase of stock or indebtedness shall be void.
The stock and indebtedness of corporations shall not be increased
except in pursuance of general law nor without the consent of the
persons holding the larger amount in value of the stock first ob-
tained, at a meeting to be held after sixty days notice given in
pursuance of law.

SEC. 9. The Legislature shall have the power to alter, revise
or annul any charter of any corporation now existing and revoc-
able at the taking effect of this Constitution, or any that may be
created, whenever in their opinion it may be injurious to the cities
of this State; in such a manner, however, that no injustice shall
be done to the incorporators. No law hereafter enacted shall
create, renew or extend the charter of more than one corporation.

SEC. 10. No law shall be passed by the Legislature granting;

the right to construct and operate a street railroad within any eit v.

town or incorporated village without requiring the consent of the

local authorities having the control of the street or highway pro-

to be occupied by such street railroad.

SEC. 11. Any association or corporation organi/ed for tho
purpose or any individual, shall have the right to construct and
maintain lines of telegraph in this State, and to connect the same
with other lines; and the Legislature shall, by general law of
uniform operation provide reasonable regulations to <^iv<.- full e fleet

130 SOUTH DAKOTA DEBATES, 1889.

to this Section. No telegraph company shall consolidate with, or
hold a controlling interest in the stocks or bonds of any other
telegraph company owning a competing line, or acquire by pur-
chase or otherwise, any other competing line of telegraph.

SEC. 12. Every railroad corporation organized or doing
business in this State under the laws or authority thereof shall
have and maintain a public office or place in this State for the
transaction of its business, where transfers of its stock shall be made,
and in which shall be kept for public inspection, books in which
shall be recorded the amount of capital stock subscribed, and by
whom ; the names of the owners of its stock, and the amount owned
by them respectively ; the amount of stock paid in ; and by whom ;
the transfer of said stock; the amount of its assets and liabilities,
and the names and places of residence of its officers. The direc-
tors of every railroad corporation shall annually make a report,
under oath, to the auditor of public accounts, or some officer or
officers to be designated by law, of all their acts and doings, which
report shall include such matters relating to railroads as may be
prescribed by law, and the Legislature shall pass laws enforcing by
suitable penalites the provisions of this section.

SEC. 13. The rolling stock and all other movable property
belonging to any railroad company or corporation in this State
shall be considered personal property, and shall be liable to execu-
tion and sale in the same manner as the personal property of in-
dividuals, and the Legislature shall pass no laws exempting such
property from execution and sale.

SEC. 14. No railroad corporation shall consolidate its stock,
property or franchise, with any other railroad corporation owning
a parallel or competing line; and in no case shall any consolidation
take place except upon public notice, given at least sixty days to
all stockholders, in such manner as may be providid by law. Any
attempt to evade the provisions of this section, by any railroad
corporation, by lease or otherwise, shall work a forfeiture of its
charter.

SEC. IS'. Railways heretofore constructed, or that may here-
after be constructed, in this State, are hereby declared public
highways, and all railroad and transportation companies are
declared to be common carriers and subject to legislative control ;
and the Legislature shall have power to enact laws regulating and
controlling the rates of charges for the transportation of passengers
and freight as such common carriers from one point to another in
this State.

SEC. 16. Any association or corporation organized for the
purpose shall have the right to construct and operate a railroad
between any points within this State, and to connect at the State
line with railroads of other states. Every railroad company shall
have the right with its road to intersect, connect or cross any other

BILL OF RIGHTS 131

railroad, and shall receive and transport each other's passengers,
tonnage and cars* loaded or empty, without delay or discrimination.

SEC. 17. The Legislature shall pass laws to correct abuses
and prevent discrimination and extortion in the rates of freight
and passenger tariffs on the different railroads in this State, and
enforce such laws by adequate penalties, to the extent, if neces-
sary for that purpose, of forfeiture of their property and franchises.

SEC. 18. Municipal and other corporations and individuals
invested with the privilege of taking private property for public
use shall make just compensation for property taken, injured or
destroyed by the construction or enlargement of their works,
highways or improvements, which compensation shall be paid or
secured before such taking, injury or destruction. The Legisla-
ture is hereby prohibited from depriving any person of an appeal
from any preliminary assessment of damages against any such
corporation or individuals, made by viewers or otherwise; and the
amount of such damages in all cases of appeal shall on the demand
of either party, be determined by a jury, as in other civil cases.

SEC. 19. The term corporations, as used in this article,
shall be construed to include all joint stock companies or associa-
tions having any of the powers or privileges of corporations not
possessed by individuals or partnerships.

Sioux Falls, Dakota, July 17, 1889.
MR. PRESIDENT: —

Your Committee on Bill of Rights, to whom was referred
Article VI, entitled "Bill of Rights" have considered the same and
have compared said Article VI with the Sioux Falls Constitution
and the Act of Congress known as the "Omnibus Bill", and have in-
structed me to report the following as Article VI of the Constitution
and the changes thereto authorized by the Omnibus Bill, to-wit:
In Section Twenty-six where the words "State of Dakota" appear
it shall be altered so as to read "State of South Dakota."

COMMITTEE ON BILL OF RIGHTS.

J. R. SPOONER,

-Chairman.
ARTICLE VI.

BILL OF RIGHTS.

SECTION 1. All men are born equally free and independent,
and have certain inherent rights, among which are those of en-
joying and defending life and liberty, of acquiring and protecting
property and the pursuit of happiness. To secure these rights
governments are instituted among men, deriving their just powers
from the consent of the governed.

SEC. 2. No person shall be deprived of life, liberty or property
without due process of law.

SEC. 3. The right to worship God according to the dictates
of conscience shall never be infringed. No person shall be denied

132 SOUTH DAKOTA DEBATES 1889

any civil or political right, privilege or capacity on account of his
religious opinions; but the liberty of conscience hereby secured
shall not be so construed as to excuse licentiousness, the invasion
of the rights of others, or justify practices inconsistent with the
peace or safety of the State. No person shall be compelled to at-
tend or support any ministry or place of worship against his con-
sent, nor shall any preference be given by law to any religious
establishment or mode of worship. No money or property of the
State shall be given or appropriated for the benefit of any sectarian
or religious society or institution.

SEC. 4. The right of petition, and of the people peaceably
to assemble to consult for the common good and make known
their opinions, shall never be abridged.

SEC. 5. Every person may freely speak, write and publish
on all subjects, being responsible for the abuse of that right. In
all trials for libel, both civil or criminal, the truth, when published,
with good motives or justifiable ends, shall be a sufficient defense.
The jury shall have the right to determine the fact and the law
under the direction of the court.

SEC. 6. The right of trial by jury shall remain inviolate, and
shall extend to all cases at law without regard to the amount in
controversy, but the Legislature may provide for a jury of less
than twelve in any court not a court of record, and for the decision
of civil cases by three-fourths of the jury in any court.

SEC. 7. In all criminal prosecutions the accused shall have
the right to defend in person and by counsel ; to demand the nature
and cause of the accusation against him; to have a copy thereof;
to meet the witnesses against him face to face ; to have compulsory
process served for obtaining witnesses in his behalf, and to a speedy
public trial by an impartial jury of the county or district in which
the offense is alleged to have been committed.

SEC. 8. All persons shall be bailable by sufficient sureties,
except for capital offenses when proof is evident or presumption
great. The privilege of the writ of habeas corpus shall not be
suspended, unless in case of rebellion or invasion, the public safety
may require it.

SEC. 9. No person shall be compelled in any criminal case
to give evidence against himself or to be twice put in jeopardy for
the same offense.

SEC. 10. No person shall be held for a criminal' offense unless
on the presentment or indictment of a grand jury, or information
of a public prosecutor, except in cases of impeachment, in cases
cognizable by county courts, by justices of the peace, and in cases
arising in the army or navy, or in the militia when in actual service
in time of war or public danger; provided, that the grand jury may
be modified or abolished by law.

SEC. 11. The right of the people to be secure in their persons,

BILL OF RIGHTS 133

houses, papers and effects, against unreasonable searches and
seizures shall not be violated, and no warrant shall. issue but upon
probable cause supported by affidavit, particularly describing the
place to be searched and the person or thing to be seized.

SEC. 12. No EX POST FACTO law, or law impairing the obli-
gation of contracts or making any irrevocable grant or privilege,
franchise, or immunity, shall be passed.

SEC. 13. Private property shall not be taken for public use,
or damaged, without just compensation as determined by a jury,
which shall be paid as soon as it can be ascertained, and before
possession is taken. No benefit which may accrue to the owner
as the result of an improvement made by any private corporation
shall be considered in fixing the compensation for property taken
or damaged. The fee of land taken for railroad tracks or other
highways shall remain in such owners, subject to the use for which
it is taken.

SEC. 14. No distinction shall ever be made by law between
resident aliens and citizens, in reference to- the possession, enjoy-
ment or descent of property.

SEC. 15. No person shall be imprisoned for debt arising out
of or founded upon a contract.

SEC. 16. The militia shall be in strict subordination to the
civil power. No soldier in time of peace shall be quartered in any
house without the consent of the owner, nor in time of war, except
in the manner prescribed by law.

SEC. 17. No tax or duty shall be imposed without the consent
of the people or their representatives in the Legilsature, and all
taxation shall be equal and uniform.

SEC. 18. No law shall be passed granting to any citizen, class
of citizens, or corporation, privileges or immunities which upon
the same terms shall not equally belong to all citizens or corporations.

SEC. 19. Election shall be free and equal, and no power,
civil or military, shall at any time interfere to prevent the free ex-
ercise of the right of suffrage. Soldiers, in time of war, may vote
at their post of duty in or out of the State, under regulations to be
prescribed by the Legislature.

SEC. 20. All courts shall be open, and every man for an in-
jury done him in his property, person or reputation, shall have
remedy by due course of law, and right and justice, administered
without denial or delay.

SEC. 21: No power of suspending law shall be exercised un-
less by the Legilsature or its authority.

SEC. 22. No person shall be attained of treason or felony
by the Legislature.

SEC. 23. Excessive bail shall not be required, excessive fines
imposed, nor cruel punishments inflicted.

134 SOUTH DAKOTA DEBATES 1889

SEC. 24. The rights of the citizens to bear arms in defense
of themselves and the State shall not be denied.

SEC. 25. Treason against the State shall consist only in
levying war against it, or in adhering to its enemies, or in giving
them aid or comfort. No person shall be convicted of treason un-
less on the testimony of two witnesses to the same overt act or
confession in open court.

SEC. 26. All political power is inherent in the people and all
free government is founded on their authority, and is instituted for
their equal protection and benefit, and they have the right in
lawful and constituted methods to alter or reform their forms of
government in such manner as they may think proper. And the
State of Dakota is an inseparable part of the American Union and
the Constitution of the United States is the supreme law of the
land.

SEC. 27. The blessings of a free government can only be
maintained by a firm adherance to justice, moderation, temperance,
frugality and virtue, and by frequent recurrence to fundamental
principles.
MR. PRESIDENT: —

Your- Committee on Municipal Corporations to whom was
referred Article X, entitled, "Municipal Corporations", have con-
sidered the same and have compared said Article X with the Sioux
Falls Constitution and the Act of Congress known as the "Omnibus
Bill" and have instructed me to report the following as Article
X of the Constitution and that the same is in accordance with the
Sioux Falls Constitution and the changes fhereto authorized by
the Omnibus Bill.

DAVID HALL,
H. L. FELLOWS,
J. F. WOOD,
GEO. C. COOPER,
J. ATKINSON,
ARTICLE X.

MUNICIPAL CORPORATIONS.

SECTION 1. The Legislature shall provide by general laws
for the organization and classification of municipal corporations.
The number of such classes shall not exceed four and the powers
of each class shall be defined by the general laws, so that no such
corporations shall have any powers, or be subject to any restrictions
other than all corporations of the same class. The Legislature
shall restrict the power of such corporations to levy taxes and
assessments, borrow money and contract debts, so as to prevent
the abuse of such power.

SEC. 2. Except as otherwise provided in this Constitution,
no tax or assessment shall be levied or collected, or debts contracted
by municipal corporations, except in pursuance of law, for public

LIMITATIONS OF ORGANIC ACT 135

purposes specified by law ; nor shall money be raised by taxation,
loan or assessment, for one purpose, ever be diverted to any other.

SEC. 3. No street passenger railway or telegraph or telephone
line shall be constructed within the limits of any village, town or
city without the consent of its local authorities.

Mr. President: The report of the Committee on Compensa-
tion of Public Officers is before the Convention ; what will the Con-
vention do with the report?

Mr. Sterling: I move it be made a special order for tomorrow's
session.

Which motion prevailed.

The President: The report of the Committee on Amendments
and Revision of the Constitution is before the Convention; what
will you do with this report?

Mr. Willis: I move that the remainder of the reports of
Standing Committees as made today be made a special order for
tomorrow.

Which motion prevailed.

The President: What is the further pleasure of the Con-
vention; the Convention has a special order for this hour?

Report of the Committee on Rights of Married Women was
read by the Clerk.

Mr. Sterilng: I move the adoption of the report.

Which motion was duly seconded.

Mr. Humphrey: I am not fully satisfied with the form of
the report ; though I would not knowingly cast upon the Committee
any reflection as I am one of them. I neglected to confer with
the Committee in regard to it. The point I have in mind is simply
this ; we are not here to draft an article or section of the Constitu-
tion, as stated in this report, in compliance with the Constitution
and the Omnibus Bill ; we are here only for the purpose, under
restrictions, to draft such changes and amendments as are required
by the provisions of the Omnibus Bill. This report here, purports
to be simply a section of the proposed Constitution which they
inform us in their report is in compliance with the Constitution
and the Omnibus Bill ; that the people are without any knowledge
that it is the original Constitution; the point is that every report
of the Standing Committees should clearly and plainly show what
changes if any, are made in the Constitution by their report.

Mr. Jolley: I do not understand that this report, handed

136 SOUTH DAKOTA DEBATES 1889

in yesterday by the Committee on Rules, is ironclad; only they
want some uniform report ; they can report in addition to that any
change that is made. The gentleman from Faulk County can, if
he wishes, lumber up the record; they have the right to do it;
nothing to stop them; no rule, made by a committee of this Con-
vention can stop them; if each Committee report that they have
compared this article with the Sioux Falls Constitution and have
made such changes as are authorized by the Omnibus Bill, if in
addition to that they want to go into detail and show what changes
they have made, I do not know any rule to preclude them.

Mr. Humphrey: They do not show that there is any changes,
or that it is in accordance with the Constitution. "And have in-
structed me to report the following as section" so and so, "which
is in compliance with the Constitution and Omnibus Bill"! No,
Mr. President, I do not desire to lumber or cumber up the records
of our Journal, but I do hold that the Journal ought to show to
those whenever reading it say a hundred years from now, any amend-
ment made in the Constitution. It seems to me to take this report
where it ends and add, "And we report the following changes and
amendments" (then truly state what they are) and then let the
form read as follows: "Your Committee respectfully recommend
the amendments", etc. We are not here to adopt that Constitu-
tion we are here for its revision, and if the report follow the words,
"We are instructed to report the following changes and amend-
ments" (briefly state them) and then state that the article as
amended will read as follows, — then recommend the adoption of
the amendment in the submission of the article.

The President: Is the Convention ready for the question?
It is moved that the report of the Committee be adopted.

The motion, reaching a vote, was duly carried and the report
of the Committee on Rights of Married Women was duly declared
adopted.

Mr. Humphrey: I move you that the report of Standing
Committees be required to clearly and plainly show what, if any,
changes and amendments 'of the Constitution are proposed.

Mr. Hole: I move that the resolution be referred to the Com-
mittee on Rules.

Which motion prevailed.

Mr. Sterling: I move you, Sir, that the report of the Committee

RIGHTS OF MARRIED WOMEN 137

on Rights of Married Women just adopted, be referred to the Com-
mittee on Arrangement and Phraseology.

The President: I do not think it is necessary for the Con-
vention to so order; it would go there if it is not ordered.

Mr. Sterling: I may be mistaken ; my opinion is the reports
should go to the Committee on Arrangement and Phraseology and
after that Committee report that there should be a vote taken on
the Constitution as a whole and upon that the ayes and' nays should
be called and we should pass it as upon the final passage of a bill
in any body.

Mr. Davies: I move that we adjourn.

Which motion prevailed and the Convention was adjourned
until Friday, July 19th, 1889, at two P. M.

SIXTEENTH DAY.

Sioux Falls, Dak., July 19th, 1889.

Two o'clock P. M.

Pursuant to adjournment the Convention re-assembled with
President Edgerton in the chair.

Prayer was offered by Mr. Matson as follows:

O God, our Father, we recognize Thee as the Giver of all good.
Thou art our sufficiency in times of temptation and in need. In
trial we have the assurance that all our needs shall be supplied
according to Thy wishes. If we lack wisdom we are encouraged
to ask of Thee, who giveth liberally. We acknowledge at this hour
our need of wisdom and understanding in our work and most
ardently do we pray that we may receive of Thy knowledge so that
all we do may be approved of Thee. May it commend itself to
the best judgment of the people. We ask that Thou wilt help us
to be thoughtful and discreet, carefully weighing all the interests
that may come before us for our consideration, both here and in
our committees. May we studiously endeavor to be both harmless
and wise. We ask that we may personally be careful that we
injure no man in his rightful interests, and also personally alert
that we do no injury to those interests pertaining to the best wel-
fare of the people. We ask these things in our Redeemer's name.

AMEN.

Mr. Fellows: I move that we dispense with the reading of
the Journal.

Which motion prevailed.

Mr. Spooner: Ought we not to make corrections now in the
Journal where they have been observed? I notice the names of
some of the Committees have been omitted. The Committee on
Amendments and Revision of the Constitution ; also the Committee
on Corporations Other Than Banking and Municipal, the names
of the Committee have been omitted ; I move that they be inserted.

The President: They will be inserted where they are not in
the report. The Clerk will so correct it.

140 SOUTH DAKOTA DEBATES 1889

Mr. Spooner: Also in regard to the uniformity in the reports
according to the form which was suggested by the Committee on
Rules, it would indicate that the Chairman only was to sign which
I did in the case of the Committee on the Bill of Rights ; I move
that the names of the whole Committee be inserted.

The President: I would suggest, Dr. Spooner, that sug-
gestions do not go in the record.

Mr. Spooner: I move that in the case of the report of the
Committee on Bill of Rights that the names of the whole Com-
mittee be inserted.

Which motion prevailed.

The President: The Clerk would like to have the Chairman
of the Committee inform him who would make the correction ; the
difficulty is, the report is printed and handed in; now the Clerk is
ordered to amend the report; that is in and printed; the report
was made yesterday, signed by the Chairman and has become a
part of the records of this Convention; now the Convention orders
it amended.

Mr. Hole: I see no way but to make a motion to re-commit
it to the Committee, and let it come in properly signed.

Mr. Dickinson: As I am a member of the Committee I would
like to make a statement ; I am not so desirous for glory that I want
my name to appear with all the Committees of which I am a mem-
ber. It will save a good deal of printing if only the name of the
Chairman appears; I should prefer to let it remain as it is, the
Chairman reporting in behalf of the Committee.

Mr. Sterling: I move that we re-consider the vote, by which
the Clerk was instructed to amend this report.

Which motion prevailed.

The President: The question now before the Convention is,
shall the Clerk amend the report of the Committee by adding
the balance of the names of the Committee to the report?

Mr. Humphrey: It would seem to me that the position held
by the Chair is that of order. It is incompetent for us to amend
this report until the report is before the Convention for consider-
ation and the omission of the names would be regarded as an
ordinary error of the Journal, and might be inserted simply as
the Journal. It does not seem to me proper to take up that re-
port prior to the time that we have the report itself before the Con-

FORM OF COMMITTEE REPORTS 141

vention for consideration. I do not think it would be a proper
time to consider an amendment to the report and think the motion
is out of order.

The President: The motion before the "Convention is, shall
the Clerk amend the report of the Committee?

Which motion was lost.

Under the order of business, reports from Standing Committees ,.
Mr. Stoddard as Chairman of the Committee on Election and
Right of Suffrage, reported as follows:
MR. PRESIDENT: —

The Committee to whom was referred Article VII, entitled,
"Election and Right of Suffrage" respectfully report that we have
found the same to be in conformity with the Enabling Act and
recommend that no alterations be made, and the article as attached
hereto I send to the Secretary's desk.

Mr. Murphy: As Chairman of the Committee on Federal
Relations, I report that our report is ready and is sent to the desk
of the Secretary.

Education and School Lands.

Mr. Humphrey: In the absence of Mr. Coats, the Committee
have prepared a report and it is ready with the exception of a
couple of signatures of a couple of members who have not yet
arrived.

State Institutions and Public Buildings.

Mr. Young: The report is sent to the desk.

Exemptions.

Mr. Buechler: The report is in the hands of the Secretary.

Mr. Davies: The 'report of the Committee on Banking and
Currency, is ready and sent to the desk of the Clerk.

Mr. Clough: The report of the Committee on Military af -
fairs is ready, but three members of the Committee are absent.

Mr. Houlton: Announced that the report of the Commit to-
on Seal and Coat of Anns was ready and sent to the Clerk's desk.

Mr. Eddy: The report of the Committee on Miscellaneous
Subjects is ready and sent to the desk.

Mr. Lee: I announce the report of the Committee, on Manu-
factures and Agriculture, as complete with the exception of one
name, an<l as in the hands of the Oerk.

142 SOUTH DAKOTA DEBATES 1889

Mr. Sterling: I send to the Clerk's desk the report of the
Judiciary Committee on the resolution referred to it.

Under the order of business consideration of reports of Stand-
ing Committees.

Mr. Davies: I move that the reports of the Standing Com-
mittees of today, be made the special order for tomorrow.

Mr. Dickinson: I move as an amendment that it be made a
special order for Tuesday.

Mr. Davies: I accept that.

The motion prevailed and the reports were made the special
order for Tuesday afternoon.

The President: The time for the special order has arrived;
we will now proceed to the consideration of the reports of yesterday,
made a special order for today.

Mr. Van Buskirk, of Codington County, called to the chair.

The Chairman: The first matter upon the special order is
the report of the Committtee on Compensation of Public Officers,
read as follows by the Clerk.

The Chairman: Gentleman, what will you do with the report
of this Committee?

Mr. Sterling: I move the adoption of the report as read.

The Chairman: Is there anything to be said upon this motion ?
If so you will have an opportunity to make any suggestions, — the
motion is to adopt the report of the Committee on Compensation
of Public Officers.

The matter coming to a vote prevailed, and the report of the
Committee was declared adopted.

The Clerk: Reads the report of the Committee on Public
Accounts and Expenditures as follows:

The Chairman: The report of the Committee on Public Ac-
counts and Expenditures is before the Convention; what will you
do with it?

Mr. Davies: I move that the report be adopted.

Motion seconded.

.Mr. Humphrey: I should like to inquire of the Committee
what changes or amendments are made in their report from the
original Constitution.

Mr. Jolley: The Chairman of the Committee is away; I know
there are no changes made.

CONSIDERATION OF REPORTS 143

The Chairman: The motion before the Convention now is,
shall we adopt the report of the Committee on Public Accounts?

The motion prevailed, and the Chair announced that said
report was adopted.

The Clerk reads the report of the Committee on Amendments
and Revision of the Constitution, as follows:

The Chairman: Gentlemen of the Convention, you have
before you the report of the Committee on Amendments and Re-
vision of the Constitution.

Mr. Dickinson: I notice in Section 2, near the last of the
Section, the Convention was to consist of as many members as
the House of Representatives. When the copy of the Constitution
in the hand book was compared with the original Constitution
it was found that the words "Of the Legislature" was inserted
there; I think they are omitted. It should be the House of Rep-
resentatives of the Legislature.

The Chairman: Do you make the motion?

Mr. Dickinson: I move that it be re-committed to the Com-
mittee for amendment in that particular.

Mr. Boucher: I move as an amendment that the amendment
be made at this time without re-committing the report.

Mr. Hole: I would like to inquire of the Chairman of the
Committee with what copy this is compared by the Committees.
If it is compared with the various copies that are floating around,
I can see how these mistakes will be made.

Mr. Boucher: I will state I had what I supposed was a
correct copy. The correction was made at the time Mr. Humphrey
was Chairman of the Committee.. I thought he had a correct copy.

Mr. Humphrey: I would like to inquire what is the question
before the House as it stands.

The Chairman: I do not remember whether the first motion
as made was seconded.

Mr. Sterling: I seconded the amendment that the correction
be made now.

Mr. Humphrey: I would suggest that in connection with
that errata found in the hand book that that is an error on the
part of the Committee without doubt. The correction will be
made by the Committee from the errata. I remember well that

144 SOUTH DAKOTA DEB.ATES 1889

the number should be the number of the members of the House
of Representatives of the Legislature.

The Chairman: The motion of Mr. Dickinson was that it
be referred back to the Committee for correction; the amendment
was made that it be now amended in this particular, by inserting
these words, "Of the Legislature" ; are- you ready for the question?

The amendment prevailed.

The Chairman: The motion of Mr. Dickinson as now amended
will be put.

The motion prevailed.

The Clerk reads the report of the Committee o'n Corporations
Other Than Banking and Municipal, as follows:

Mr. Dickinson: As this article is quite length yand no changes
were made in it, I move that the reading of it be dispensed with.

Mr. Corson: I would ask the Chairman of this Committee if
any changes were made.

Mr. Dickinson: I am Chairman of that Committee and there
were no changes made in that article.

The Chairman: Unless there are objections made, the reading
of the report will be dispensed with.

The motion to adopt said report reaching a vote, prevailed.

The report of the Committee on Bill of Rights was read by
the Clerk as follows: (Here insert.)

The Chairman: You have before you the report of the Com-
mittee on Bill of Rights ; what is the pleasure of the Convention.

Mr. Fellows: I would like to have the report of the Com-
mittee as to what changes they have made.

Mr. Spooner: The amendment was indicated in the report
as read by the Clerk.

The Chairman: Perhaps the Chairman might add it is the
original bill only with the word added that would make it read
as desired.

Mr. Boucher: I move that the report of the Committee on
Amendments and Revision of the Constitution be adopted.

Which motion was seconded.

The Chairman: This is the report of the Committee on Bill
of Rights; I think the report of the Committee on Amendments
and Revision of the Constitution has been adopted ; I so understand
it ; this is the Bill of Rights that is under consideration now.

BILL OF RIGHTS ADOPTED 145

Mr. Chairman: The question before the House now is upon
the adoption of the report of the Committee upon the Bill of
Rights. As I understand, it is^precisely as before with the ex-
ception of the amendment so that it will read "South Dakota"
instead of "Dakota".

The motion prevailed and the report of the Committee on
Bill of Rights was adopted.

Mr. Dickinson: It is my recollection, that Mr. Boucher is
correct as to the report of the Committee on Amendments and
Revision of the Constitution not having been adopted. It was the
report to which I made an amendment ; it was amended and I
do not recollect that the motion was made to adopt the report as
amended. I move you, Sir, that the report as amended be adopted-
Mr. Atkinson ; That is my recollection ; I second the motion.

Mr. Humphrey: I would like to have the Chairman state to
the Convention if there was any amendment or alteration reported.

Chairman of the Committee: No there was not.

The motion to adopt the report of the Committee on Amend-
ments and Revision of the Constitution as amended, prevailed.

The Chairman: The next order of business is consideration
of the Committee on Municipal Corporations.

The Clerk reads the report of the Committee as follows: (Here
insert it).

Mr. Davies: I would ask if there were any changes in this.

Mr. Whitlock : There was none.

Mr. Davies: I move the adoption of the report.

Which motion prevailed.

Mr. Atkinson: I notice in the names of the Committee as
printed is "J. Atkinson"; I move it be changed to read "I. At-
kinson."

Which motion prevailed.

Mr. Harris moved that the Convention do now adjourn.

Mr. Sterling: There were some reports from the Judiciary
Committee ; other than the reports upon the general work assigned
to them ; I suppose it would be well to read those reports ; they
are up in the Clerk's desk.

The Clerk read as follows:
MR. PRESIDENT: —

Your Committee on Judiciary, to whom was referred the
resolution requesting the Committee to report as to the necessity

J46 SOUTH' DAKOTA DEBATES, 1889.

of accepting the several new grants of lands, moneys and buildings
to South Dakota by a resolution of the Convention, would respect-
fully report: That without determining the necessity of such
resolution, the Committee recommend, that a section be incorpor-
ated in the Constitution, formally accepting such grants.

THOMAS STERLING,
H. A. HUMPHREY,
A. J. BERDAHL,
H. W. EDDY,
W. T. WILLIAMS,
S. A. RAMSEY,
D. CORSON,

C. J. B. HARRIS,

S. B. VAN BUSKIRK,
of the Judiciary Committee

The President: What will the Convention do with the report
of the Committee?

Mr. Wescott: I move that the report be adopted.
Mr. Davies: I would amend that and make it the special
order for next Tuesday.

Mr. Humphrey: I move as a substitute of the motion before
the House that the report of the Judiciary Committee be referred
to the Committee on Amendments and Revision of the Consti-
tution with instructions to report on Tuesday.
Which motion prevailed.

The Clerk reads the second report of the Committee on Ju-
diciary, as follows:

Sioux Falls, July 19, 1889.
MR. PRESIDENT: —

Your Committee on Judiciary to whom was referred the reso-
lution pertaining to the signing of the Constitution by members
of the Constitutional Convention of 1885, who by inadvertance
or other cause were prevented from signing the same, respectfully
report ;

That upon consideration of such resolution it is the sense
of the Committee that this Convention has no authority to grant
permission to such members to affix their signatures to the Con-
stitution of 1885.

THOMAS STERLING,
H. A. HUMPHREY,
A. J. BERDAHL,
H. W. EDDY,
W. T. WILLIAMS,
S. A. RAMSEY,

D. CORSON,

LEASE OP SCHOOL LANDS 147

C. J. B. HARRIS,
S. B. VAN BUSKIRK,
of the Judiciary Committee.

The Chairman: What will you do with the further report
of the Judiciary Committee ?

Mr. Young: I move that it be adopted.

Which motion prevailed.

Mr. Sterling: Under the call of business, introduction of
propositions relating to the Constitution I sent to the Clerk's desk
a resolution providing for an amendment to the Section but did
not have an opportunity to call it to the attention of the members
and the Chair at that time. I move you that we return to that
order of business.

Which motion prevailed and the Clerk read the resolution,
as follows:

RESOLVED: That the report of the Committee on Education
and School Lands be amended so that Section 9 of Article 5 shall
read as follows:

SEC. 9. The lands mentioned in this article may, under such
regulations as the Legislature may prescribe, be leased for periods
of not more than five years, in quantities not exceeding one section
to any one person or company. All rents shall be payable annually
in advance, nor shall any lease be valid until it receives the ap-
proval of the Governor.

Mr. Sterling: I move now that the resolution be made a
part of that special order under which the report of the Committee
on Education and School Lands is to be considered next Tuesday.

The Chairman: It will be made the special order for next
Tuesday unless objection is made.

Mr. Hole: I think in deference to the Committee that has
that special work before them, that this should be referred to them,
and as there is no second to the gentleman's motion, I will move
you that this be referred to the Committee on Education and
School Lands.

Which motion was duly seconded, and by vote of the Con-
vention, adopted,

Mr. Harris: I renew my motion to adjourn.

Mr. Clough: I sent a request to the desk for the old soldiers
to sign their names, their rank, company and regiment on a slip
of paper and hand the same to me. The object of this is to find

148 SOUTH DAKOTA DEBATES 1889

out how many members of the Convention are veterans; that
this information may be made a matter of record and be preserved.

The Chairman: The motion before the House is to adjourn
and will now be put.

The motion prevailed and the House stands adjourned.

SEVENTEENTH DAY.

Sioux Falls, Dak., July 20, 1889.

Two o'clock P. M.

Convention re-convened pursuant to adjournment.

Mr. Corson, of Lawrence, in the Chair.

Prayer by Mr. Clough, of Watertown.

Our Heavenly Father, as we commence the labors of this day
we desire to thank Thee for Thy preserving care; for Thy tender
mercies toward us, for Thy Father's love that is revealed to us
We now ask Thy blessing on this Convention here and absent;
upon the intricate work resting upon the Commission we have sent
out to do. Grant Thy blessing upon this day's proceedings; follow
us all the days of our lives, and give us an abundant entrance into
Thy kingdom, we ask for Christ's sake.

AMEN.

The Clerk read the following communication:

Sioux Falls, Dak., July 20, 1889.
JUDGE CORSON: —

Will you please preside in the Convention during my absence?

A. J. EDGERTOX.

Mr. Young: I move we do now adjourn.

Which motion prevailed and the Convention stands adjourned.

NINETEENTH DAY.

Sioux Falls, Dak., July 22nd, 1889.

Two o'clock P. M.

Convention re-assembled pursuant to adjournment.

Mr. Corson, of Lawrence, presiding.

The Chaplain: We thank Thee, O God, for all that Thou hast
done for us in the past and we ask Thee that Thou wilt so direct
our path and so lead us out in the way that our paths will be paths
of peace and our ways, ways of righteousness, that we shall do
great good for ourselves and the commonwealth that we represent.
Wilt Thou go with us and own our efforts this day, we ask it in the
name of Jesus, our Savior.

AMEN.

The Journal of the preceding day was read and approved.
Under the order of business, reports of Standing Committees, the
Committee on County and Township Organization announced
their report was ready.

The Committee on Engrossment and Enrollment sent to the
desk of the Secretary an engrossed copy of the memorial that was
to be sent to the President of the United States, concerning school
lands.

The Chairman: That will be left until tomorrow until Presi-
dent Edgerton returns.

Mr. Spooner: I move that the report of the Committee on
County and Township Organization be made a special order for
tomorrow.

Which motion prevailed.

Under the order of business announced by the Chair in the
usual call of business for the day, Presentation of Resolutions and
Propositions Relating to the Constitution.

152 SOUTH DAKOTA DEBATES 1889

Mr. Goddard: I have a resolution and ask that it be read
and referred to a Committee.

WHEREAS: There has been presented to this Convention some
evidence of an uncertainty as to where the Seventh Standard
Parallel upon which the line of Dakota is to be divided into two
states is, and

WHEREAS: It seems necessary to confer with the Consti-
tutional Convention of North Dakota, now in session at Bismarck,
to adjust this matter amicably and permanently,

RESOLVED: That the Convention instruct the Commission
sent by this body to Bismarck to come to the best possible agreement
with the Committee of the North Dakota Convention concerning
said boundary line and report the same to this body.

The Chairman: It will be referred to the Committee on Name,
Boundary and Seat of Government, if no objection is made. The
Chair hears no objection; it is so referred.

The Chairman: I will call attention of the Convention to
the fact that in the report of the Committee on Compensation of
Public Officers, there is a slight error in using the word "each";
the report has been adopted and it may be necessary to reconsider
the report for the purpose of correcting that error; it was copied
from an erroneous copy of the Constitution I suppose; the word
"each" has been inserted where it should be omitted.

Mr. Spooner: According to the rules, must not a motion to
re-consider be made the next day?

The Chairman: It would be in time today, I think.

Mr. Spooner: I move you, Mr. President, we consider that
motion whereby the Convention adopted the report of the Com-
mittee on Compensation of Public Officers.

The Chairman: You will notice on the first page of the pro-
ceedings of July 18th it occurs on the last line, "The Commissioner
of School and Public Lands shall each receive"; of course Com-
missioner of School and Public Lands is one officer ; that word "each"
should not appear; it is moved and seconded that the vote by
which that report was adopted be re-considered.

Which motion prevailed.

Mr. Clough: I move the report be amended in accordance
with the fact by striking out the word "each".

Mr. Hartley: I call upon the gentleman to specify the line.

ROUTINE 153

The Chairman: It is the word "each" occurring in the last
line of the first page of the printed Journal of July 18th, in the
report of the Committee on Compensation of Public Officers.

The motion was adopted by vote of the Convention.

Mr. Dickinson : I move the report as amended be now adopted.

Which motion received a second and duly prevailed.

On motion the Convention adjourned.

TWENTIETH DAY.

Sioux Falls, July 23d, 1889.

Two o'clock P. M.

Convention convened pursuant to adjournment, with Mr.
Corson, of Lawrence in the Chair.

Prayer was offered by Mr. Matson, of Kingsbury County.

O Lord, our Heavenly Father, we thank Thee today, for Thy
gracious favor shown us thus far in the history of the Convention;
for as much of life as we are permitted to enjoy and for the feeling
of friendship and good will which prevails among the members.
And we thank Thee for the general desire to know the right in all
matters, and to do justly in our deliberations. We pray at this
time for a continuation of Thy blessing; may we not be perplexed
in our work by any little ambitious natures; may we forget self;
we pray that we may truly know what is right on all questions,
and do the right fearlessly; we pray that the result of our labors
may prove a lasting good to all concerned. Hear us at this time
for the homes we represent ; for the loved ones from whom we are
separated at this time, and the several interests we for the present
have abandoned. Guide us through this day and through the
remaining days of the Convention and through the future of our
lives, for Jesus' sake.

AMEN.

Journal of the previous day was read and approved.

The Chairman: The first order of business, is Communications
and Presentation of Petitions.

Communication from the American Sabbath Union was pre-
sented by Mr. President, pro tern, as follows:

The American Sabbath Union, whose office is No. 23 Park
Row, earnestly recommend that a provision should be inserted in
your new Constitution, protecting and encouraging Sabbath ob-
servance, and perhaps the following form would be acceptable to
the Convention: "No work or trade shall be carried on the
first day or the Week, usually called Sunday, except such as may
be strictly charitable or necessary, and the Legislature shall pass
laws regulating and encouraging the obesrvance of the Holy

156 SOUTH DAKOTA DEBATES 1889

Sabbath by all the people."

If the matter has not already been favorably acted upon by
the Convention will you not kindly take the necessary steps to have
this or a similar proposition adopted by the Convention and then
lay the Constitution for the new State upon the sure foundation of
the divine work and reap the gratitude of your own people and those
of the whole country.

SIGNED: ELIOTT F. SHEPHERD,

President of the American Sabbath Union.
U. S. MAYOR,
GEN. O. O. HOWARD,
of the Executive Committee.
J. H. KNOWLES,
WILBER.F. CROFTS,

Secretary.

Mr. Clough: As there is no committee to which that can go
I move that it be assigned to a special committee of five. ,

Motion duly seconded.

The motion prevailed.

The Chairman: I will appoint as a Committee of Special
Reference on the Communication, Messrs. Clough, of Codington;
Huntley, of Jerauld; Willis, of Aurora; Wood, of Pennington;
and Ramsey, of Sanborn.

The Chairman: Unfinished business of the previous day;
nothing I believe but special orders.

Reports from Standing Committees ?

Congressional and Legislative Apportionment? No report
ready.

Judiciary? Report sent to the desk.

Schedule? Not ready.

Name, Boundary and Seat of Government?

Mr. Stroupe: The report is signed by all but two of the Com-
mittee who are absent, and is sent to the desk.

State, County and Municipal Indebtedness.

Mr. Sherwood: Not ready.

Legislative, McFarland (Chairman.) Report sent to desk.

Education and School Lands? Coats (Chairman.) No report
ready.

Revenue and Finance.

Goddard, Chairman: Not ready.

Printing? No response.

Expenses of the Convention?

JUDICIAL DEPARTMENT 157

Mr. Huntley: Not ready.

The President: The Secretary will read these reports and
unless it is the desire of the Convention, the Clerk will not read
that portion of each report, quoting the Constitution; they are
printed, and you can examine them more particularly.

The Clerk reads the report of the Committee on Judiciary,
as follows:
MR. PRESIDENT: —

Your Committee on Judiciary to whom was referred Article
V of the Constitution, entitled, "Judicial Department", having had
the same under consideration together with those provisions of
the Omnibus Bill relating to said department, beg leave to report
as follows:

FIRST. That upon the question of the power of the Conven-
tion to increase the number of Judicial Circuits, the Committee,
after free discussion and examination, conclude that under Section
5 of said Omnibus Bill, allowing such changes in the Constitution
as relate to the re-apportionment of Judicial Districts, such increase
by this Convention is clearly authorized.

SECOND. That the Committee have likewise carefully con-
sidered the expediency and the necessity of such increase. In the
older and more thickly populated counties a large volume of busi-
ness has been long pending before the courts; and new counties,
largely settled since the apportionment by the Convention of 1885,
have added to the litigation to be disposed of in all the Circuits;
and, from all the information before the Committee it is apparent
that the six Judicial Circuits as providid by the Constitution of
1885 are inadequate in number for the transaction of the business
pertaining thereto, and that the creation of county courts with
jurisdiction as limited by the Constitution will not afford the
required relief.

THIRD. That in recommending an increase from six to eight
Judicial Circuits, the Committee believes the interests of justice
and economy will be subserved, and that such is the least increase
consistent with a proper administration of the law.

FOURTH. That in the re-apportionment made by the Com-
mittee care has been taken that the Circuits shall be formed by
compact territory and bounded by county lines, and that, having
reference to such compactness and the amount of business to be
done, your committee believe that the apportionment, as shown
by the amendment to Section 16 of Article V herewith submitted,,
is a just and equitable apportionment of the State into Judicial
Circuits. That such apportionment annuls Section 16 of Article
Five, so that the same shall read^as follows;

SECTION 16. Until otherwise ordered by law said circuits,
shall be eight in -number and constituted as follows, viz.:

158 SOUTH DAKOTA DEBATES 1889

FIRST CIRCUIT: The Counties of Union, Clay, Yankton,
Turner, Bon Homme, Hutchinson, Charles Mix, Douglas, Todd,
Gregory, Tripp and Meyer.

SECOND CIRCUIT: The Counties of Lincoln, Minnehaha,
McCook, Moody and Lake.

THIRD CIRCUIT: The Counties of Brookings, Kingsbury,
Deuel, Hamlin, Codington, Clark, Grant, Roberts, Day and the
Whapeton and Sisseton Reservation, except such portion of said
reservation as lies in Marshall County.

FOURTH CIRCUIT: The Counties of Sanborn, Davison, Aurora,
Brule, Buffalo, Jerauld, Hanson, Miner, Lyman, Presho, and
Pratt.

FIFTH CIRCUIT: The Counties of Beadle, Spink, Brown
and Marshall.

SIXTH CIRCUIT: The Counties of Hand, Hyde, Hughes,
Stanley, Sully, Potter, Faulk, Edmunds, Walworth, Campbell,
McPherson, and all that portion of said State lying east of the
Missouri river and not included in any other Judicial Circuit.

SEVENTH CIRCUIT: The Counties of Pennington, Custer,
Fall River, Shannon, Washington, Zeibach, Sterling, Nowlin,
Jackson, Washabaugh, and Lugenbeel.

EIGHTH CIRCUIT: The Counties of Lawrence, Meade, Scobey-
Butte, Belano, Pyalt, Dewey, Boreman, Schnasse, Rinehart, Mar,
tin, Choteau, Ewing, Harding, and all that portion of said State
west of the Missouri river and north of the Big Cheyenne River
and the north fork of the Cheyenne river not included in any other
Judicial Circuit.

FIFTH: The Committee further report amendments as fol-
lows: In the first line of Section 38 of said Article V, insert the
word "South" before the word "Dakota", and in the third line of said
Section 38 insert the word "South" before the word "Dakota".
And we herewith report Article V with the changes and amend-
ments aforesaid incorporated therein which changes and amend-
ments are necessary to comply with the provisions of the Omnibus
Enabling Act and are authorized by the same, and the Committee
respectfully recommend the adoption of said Article as amended.
ARTICLE V.

JUDICIAL DEPARTMENT.

SECTION 1. The Judicial powers of the State, except as in
this Constitution otherwise provided, shall be vested in the Supreme
Court, Circuit Courts, County Courts, and Justices of the Peace,
and such other courts as may be created by law for cities and in-
corporated towns.

SUPREME COURT.

SEC. 2. The Supreme Court, except as otherwise provided
in this' Constitution, shall have appellate jurisdiction only, which
shall be co-extensive with the State, and shall have a general su-

JUDICIAL CIRCUIT 159

perintending control over all inferior courts, under such regulations
and limitations as may be prescribed by law.

SEC. 3. The Supreme Court and the Judges thereof shall
have power to issue writs of habeas corpus. The Supreme Court
shall also have the power to issue writs of mandamus, quo war-
ranto, certiorari, injunction and other original and remedial writs,
with authority to hear and determine the same in such cases, and
such regulations as may be provided by law, provided, however,
that no jury trials shall be allowed in said Supreme Court , but , in pro-
per cases, questions of fact may be sent by said court to a Circuit
Court to a trial before a jury.

SEC. 4. At least two terms of the Supreme Court shall be
held each year at the seat of government.

SEC. 5. The Supreme Court shall consist of three Judges, to
be chosen from districts by qualified electors of the State at large,
as hereinafter provided.

SEC. 6. The number of said Judges and Districts may, after
five years from the admission of this State under this Constitution,
be increased by law to not exceeding five.

SEC. 7. A majority of the Judges of 'the Supreme Court
shall be necessary to form a quorum or to pronounce a decision,
but one or more of said Judges may adjourn the Court from day
to day or to a day certain.

SEC. 8. The term of the Judges of the Supreme Court, who
shall be elected at the first election under this Constitution, shall
be four years. At all subsequent elections the term of said Judges
shall be six years.

SEC. 9. The Judges of the Supreme Court shall by rule,
select from their number a Presiding Judge, who shall act as such
for the term prescribed by such rule.

SEC. 10. No person shall be eligible to the office of Judge of
the Supreme Court unless he be learned in the law, be at least
thirty years of age, a citizen of the United States, nor unless he
shall have resided in this State or Territory at least two years next
preceding his election and at the time of his election be a resident
of the district from which he is elected, but for the purpose of re-
election, no Judge shall be deemed to have lost his residence in
the District by reason of his removal to the seat of government in
the discharge of his official duties.

SEC. 11. Until otherwise provided by law, the districts from
which the said Judges of the Supreme Court shall be elected, shall
be constituted as follows:

FIRST DISTRICT: All that portion of the State lying west of
the Missouri river.

SECOND DISTRICT: All that portion of the State lying east
of the Missouri river and south of the Second Standard Parallel.

160 SOUTH DAKOTA DEBATES 1889

THIRD DISTRICT: All that portion of the State lying east of
the Missouri river and north of the Second Standard Parallel.

SEC. 12. There shall be a Clerk and also a Reporter of the
Supreme Court, who shall be appointed by the Judges thereof,
and who shall hold office during the pleasure of said Judges, and
whose duties and emoluments shall be prescribed by law, and by
the rules of the Supreme Court not inconsistent with law. The
Legislature shall make a provision for the publication and dis-
tribution of the decisions of the Supreme Court, and for the sale
of the published volumes thereof. No private person or corpor-
ation shall be allowed to secure any copyright to such decisions,
but if any copyrights are secured they shall inure wholly to the
benefit of the State.

SEC. 13. The Governor shall have authority to require the
opinions of the Judges of the Supreme Court upon important ques-
tions of law involved in the exercise of his executive powers and
upon solemn occasions.

CIRCUIT COURTS.

SEC. 14. The Circuits Courts shall have original jurisdiction
of all actions and causes, both at law and in equity, and such ap-
pellate jurisdiction as may be conferred by law and consistent with
this Constitution; such jurisdiction as to value and amount and
grade of offense, may be limited by law. They and the Judges
thereof shall also have jurisdiction and power to issue writs of
habeas corpus, mandamus, quo warranto, certiorari and other
original and remedial writs, with authority to hear and determine
the same.

SEC. IS. The State shall be divided into judicial circuits, in
each of which there shall be elected by the electors thereof, one
Judge of the Circuit Court therein, whose term of office shall be
four years.

SEC. 16. Until otherwise ordered by law said Circuits shall
be eight in number and constituted as follows, viz:

FIRST CIRCUIT: The Counties of Union, Clay, Yankton,
Turner, Bon Homme, Hutchinson, Charles Mix, Douglas, Todd,
Gregory, Tripp and Meyer.

SECOND CIRCUIT: The Counties of Lincoln, Minnehaha, Mo
Cook, Moody and Lake.

THIRD CIRCUIT: The Counties of Brookings, Kingsbury,
Deuel, Hamlin, Codington, Clark, Grant, Roberts, Day and the
Whapeton and Sisseton Reservation, except such portion of said
reservation as lies in Marshall County.

FOURTH CIRCUIT: The Counties of Sanborn, Davison, Au-
rora, Brule, Buffalo, Jerauld, Hanson, Miner, Lyman, Presho
and Pratt.

FIFTH CIRCUIT: The Counties of Beadle, Spink, Brown,
and Marshall.

CIRCUIT COURT DISTRICT 161

SIXTH CIRCUIT: The Counties of Hand, Hyde, Hughes, Sully,
Stanley, Potter, Faulk, Edmunds, Walworth, Campbell, Mc-
Pherson, and all that portion of said State lying east of the Missouri
river and not included in any other judicial circuit.

SEVENTH CIRCUIT: The Counties of Pennington, Custer, Fall
River, Shannon, Washington, Ziebach, Sterling, Nowlin, Jackson,
Washabaugh, Lugenbeel.

EIGHTH CIRCUIT: The Counties of Lawrence, Meade, Scobey,
Butte, Delano, Pyatt, Dewey, Boreman, Schnasse, Rinehart,
Martin, Choteau, Ewing, Harding, and all that portion of said
State west of the Missouri river and north of the Big Cheyenne
river and the north fork of the Cheyenne river not included in any
other judicial circuit. «

SEC. 17. The Legislature may, whenever two-thirds ot the
members of each house shall concur therein, increase the number
of judicial circuits and the judges thereof, and divide the State
into judicial circuits accordingly, taking care that they be formed
of compact territory and be bounded by county lines, but such
increase of number or change in the boundaries of districts shall
not work the removal of any judge from his office during the term
for which he shall have been elected or appointed.

SEC. 18. Writs of error and appeals may be allowed from the
decisions of the Circuit Courts to the Supreme Court under such
regulations as may be prescribed by law.

COUNTY COURTS.

SEC. 19. There shall be elected in each organized county a
county judge who shall be judge of the county court of said county,
whose term of office shall be two years until otherwise provided
by law.

SEC. 20. County Courts shall be courts of record and shall
have original jurisdiction in all matters of probate guardianship
and settlement of estates of deceased persons and such other
criminal jurisdiction as may be conferred by law, provided that
such courts shall not have jurisdiction in any case where the debt,
damage, claim or value of the property involved shall exceed one
thousand dollars, except in matters of probate guardianship and
the estates of deceased persons. Writs of error and appeal may
be allowed from county to circuit courts, or to the Supreme Court in
such cases and in such manner as may be prescribed by law, pro-
vided that no appeal or writ of error shall be allowed to the circuit
court from any judgment rendered upon an appeal from a justice
of the peace or police magistrate for cities and towns.

SEC. 21. The County Court shall not have jurisdiction in
cases of felony, nor shall criminal cases therein be prosecuted by
indictment ;but they may have such jurisdiction in criminal matters
not of the grade of felony, as the Legislature may prescribe, and

162 SOUTH DAKOTA DEBATES, 1889.

the prosecutions therein may be by information or otherwise as
the Legislature may provide.

JUSTICES OF THE PEACE.

SEC. 22. Justices of the Peace shall have such jurisdiction as
maybe conferred by law, but they shall not have jurisdiction of any
case wherein the value of the property or the amount in contro-
versy exceeds the sum of one hundred dollars, or where the boundar-
ies or title of real property shall be called in question.

POLICE MAGISTRATE.

SEC. 23. The Legislature shall have power to provide for
creating such police magistrates for cities and towns as may be
deemed from time to time necessary, who shall have jurisdiction of
all cases arising under the ordinances of such cities and towns re-
spectively and such police magistrates may also be constituted ex-
officio justice of the peace for their respective counties.
STATE'S ATTORNEY.

SEC. 24. The Legislature shall have power to provide for
State's Attorney's and to prescribe their duties and* fix their com-
pensation; but no person shall be eligible to the office of Attorney •
General or State's Attorney who shall not at the time of his election
be at least twenty-five years of age and possess all the other quali-
fications for Judges of the Circuit Courts as prescribed in this
article.

MISCELLANEOUS.

SEC. 25. No person shall be eligible to the office of Judge
of the Circuit Court or County Courts unless he be learned in the
law, be at least twenty-five years of age, and a citizen of the United
States; nor unless he shall have resided in this State or Territory at
least one year next preceding his election, and at the time of his
election be a resident of the county or circuit, "as the case may be,
for which he is elected.

SEC. 26. The Judges of the Supreme Court, Circuit Courts
and County Courts shall be chosen at the first election held under
the provisions of this Constitution, and thereafter as provided by
law, and the Legislature may provide for the election of such officers
on a different day from that on which an election is held for any
other purpose, and may, for the purpose of making such provision,
;xtend or abridge the term of office for any of such judges then
holding, but net in any case more than six months. The term of
office of all judges of Circuit courts, elected in the several judicial
districts throughout the State shall expire on the same day.

SEC. 27. The time of holding courts within said judicial cir-
cuits and counties shall be as provided by law ; but at least one term
ic circuit court shall be held annually in each organized count v

the legislature shall make provision for attaching un-organized
Bounties or territory to organized counties for judicial purposes

SUPREME AND CIVIL JUDGES 163

SEC. 28. Special terms of said courts may be held under such
regulations as may. be provided by law.

SEC. 29. The judges of the circuit courts may hold courts
in other circuits than their own, under such regulations as may be
prescribed by law.

SEC. 30. The judges of the Supreme Court, circuit court and
county courts shall each receive such salary as may be provided
by law, consistent with this Constitution, and no such judge shall
receive any compensation, perquisite or emoluments for or on ac-
count of his office in an}' form whatever, except such salary; pro-
vided, that county judges may accept and receive such fees as may
be allowed under the land laws of the United St'ates.

SEC. 31. No judge of the Supreme Court or circuit court
shall act as attorney or counsellor at law,, nor shall any county judge
act as attorney or counsellor at law in any case which is or may
be brought into his court or which may be appealed therefrom.

SEC. 32. There shall be a Clerk of the Circuit Court in each
organized county, who shall also be Clerk of the County Court,
and who shall be elected by the qualified electors of such county.
The duties and compensation of said Clerk shall be as provided by
law and regulated by the rules of the court consistent with the
provisions of 1;;

SEC. 33. Until the Legislature shall provide by law for fixing
the terms of courts, the Judges of the Supreme, Circuit and County
Courts, respectively, shall fix the terms thereof.

SKC. 34. All laws relating to courts shall be general and of
uniform operation throughout the State, and the organization,-
jurisdiction, power, proceedings and practice of all the courts of
the same class or grade, so far as regulated by law, and the force and
effect of such of the proceedings, judgments and decrees of such
courts severally shall be uniform, provided, however, that the '
lature may classify the county courts according to the population
of the respective counties and fix the jurisdiction and salary of the
judges thereof accordingly.

SKC. 35. Xo judge of the Supreme or Circuit Courts shall
1>e elected to any ot her than a judicial office, or be eligible thereto,
during the term for which he was elected such judge. AH
for either of them during sueh term for any elective office, excepl
that of Judge of the Supreme Court, Circuit Court or County Court,
given by the Legislature or the people, shall be void.

SEC. 36. All judges or other officers of the Supreme, Circuit
or County Courts provided for in this article shall hold their offices
until their succ ivcly are elected or appointed and

qualified.

SKC. 37. All officers provided for in this article shall re
tively reside in the district , count v. precinct, city or town for which
they may be elected or appointed. Vacancies in the elective of-

164 SOUTH DAKOTA DEBATES 1889

fices provided for in this article shall be filled by appointment until
the next general election, as follows: All judges of the Supreme,
Circuit and County Courts, by the Governor. All other judicial
and other officers by the County Board of the county where the
vacancy occurs; in cases of police magistrates, by the municipality.
SEC. 38. All processes shall run in the name of the "State
of South Dakota". All prosecutions shall be carried on in the
name of and by authority of the "State of South Dakota."

THOS. STERLING, Chmn.
H. A. HUMPHREY,
CHAUNCEY L. WOOD,
SAMUEL A. RAMSEY,
H. W. EDDY.
CARL SHERWOOD,
S. B. VAN BUSKIRK,
G. F. FELLOWS,
D. CORSON.

Mr. Van Buskirk: I move that that be made a special order
for Thursday; the reason that I make it at that time is, because
the report will not be printed and in the possession of the members
tomorrow morning. (Motion seconded.)

Mr. Cooper: I move an amendment, that it be made the
special order for tomorrow. (Amendment seconded.)

Mr. Davies: Have we not more work on hand now than
we can do?

Mr. Van Buskirk: I desire to suggest, I believe the rule is
that where time is contained in a motion, the longest time is put
first.

The Chairman: The gentleman is right; those favoring the
postponing the consideration of this report until Thursday will
signify it by saying aye. The Chair is in doubt.

The motion was lost by a rising vote of twenty-seven ayes
to twenty-two nays.

The President: Now the amendment will be in order that it
be postponed until tomorrow afternoon.

Mr. Atkinson: I move as a substitute that it be made a
special order for Wednesday afternoon.

A Voice: That is tomorrow! (Laughter).
The amendment prevailed, and the consideration of the report
was postponed until Wednesday.

The Clerk reads the report of the Committee on Name, Boun-
dary and Seat of Government, as follows:

NAME AND BOUNDARY 165

Sioux Falls, July 23, 1889.
MR. PRESIDENT: —

Your Committee on Name, Boundaries and Seat of Govern-
ment, to whom was referred Article I of the Sioux Falls Consti-
tution, have considered the same and respectfully recommend that
Section 1 of said Article I be amended by inserting the word
"South" before the word Dakota,

That Section 2 of said Article I be amended by inserting the
word "South" before the word Dakota, and by striking out the
words "Forty-sixth parallel of north latitude; thence west along
the Forty-sixth Parallel of north latitude," and in lieu thereof
insert the words, "Seventh Standard Parallel; thence west on the
line of the Seventh Standard Parallel produced due west;" and
therefore respectfully recommend the following as Article I of the
Constitution, the same being in accordance with the "Omnibus
Bill."

ARTICLE I.

NAME AND BOUNDARY.

SECTION 1. The name of the State shall be South Dakota.
SEC. 2. The boundaries of the State of South Dakota shall
be as follows: Beginning at the point of intersection of the western
boundary line of the State of Minnesota with the northern boundary
line of the State of Iowa, and running thence northerly along the
western boundary line of the State of Minnesota, to its intersection
with the Seventh Standard Parallel; thence west on the line of
the Seventh Standard Parallel produced due west to its intersec-
tion with the Twenty-seventh Meridian of longitude west from
Washington thence south on the Twenty-seventh Meridian of
longitude west from Washington to its intersection with the
northern boundary line of the State of Nebraska; thence easterly
along the northern boundary line of the State of Nebraska to its
intersection with the western boundary line of the State of Iowa;
thence northerly along the western boundary line of the State of
Iowa to its intersection with the -northern boundary line 'of the
State of Iowa; thence east along the northern boundary line of
the State of Iowa to the place of beginning.

Respectfully submitted,

M. P. STROUPE, Chmn.
S. A. WHEELER,
W. T. WILLIAMS,
E. G. EDGERTON,
WM. VAN EPS.

Mr. Davies: I move that this report be made a special sub-
ject for consideration tomorrow at the afternoon session.
Motion seconded.
Motion prevailed.

166

SOUTH DAKOTA DEBATES 1889

The Clerk read the second report of the Committee on Name,
Boundary and Seat of Government, as follows:

SEC. 3. Should no place voted for at said election have a
majority of all votes cast upon this question, the Governor shall
issue his proclamation for an election to be held in the same manner
at the next general election to choose between the two places
having received the highest number of votes cast at the first elec-
tion on this question. This election shall be conducted in the same
manner as the first -election for the permanent seat of government ,
and the place receiving the majority of all votes cast upon this
question shall be the permanent seat of government.

M. P. STROUPE, Chmn.
S. A. WHEELER,
E. G. EDGERTON,
W. T. WILLIAMS,
WM. VAN EPS.

Mr. Stroupe: I move that the consideration, of this report
.be made the special order for tomorrow.
Which motion prevailed.

The President; I think that the report of the Legislative
Committee is not in accordance with the rule ; if there is no objection,
I will refer it back to the Committee to report it in form in which
the rule provides. There being no objection, it will be so referred.
The President: There being no business under the call of
Report of Select Committees, or Consideration of Reports of Se-
lect Committees or Presentation of Resolutions or Propositions
Relating to the Constitution, we will proceed to the special order
for the day; the first one is the Report of the Committee on Im-
peachment and Removal from Office. The Clerk will read that
report.

Sioux Falls, Dak., July 19, 1889.
MR. PRESIDENT: —

Your Committee on Legislative to whom was referred Article
XVI, entitled, "Impeachment and Removal From Office", have
considered the same and have compared said Article XVI with
the Sioux Falls Constitution and the Act of Congress known as the
"Omnibus Bill", and have instructed me to report the following
as Article XVI of the Constitution and that the same is in accor-
dance with the Sioux Falls Constitution and the change thereto
authorized by the Omnibus Bill.

ARTICLE XVI.

SECTION 1. The House of Representatives shall have the sole
power of impeachment. The concurrence of a majority of all
members elected shall be necessary to an impeachment.

IMPEACHMENTS 167

SEC. 2. All impeachments shall be tried by the Senate. When
sitting for that purpose the Senators shall be upon oath or affirma-
tion to do justice according to law and evidence. No person shall
be convicted without the concurrence of two-thirds of the members
elected. When the Governor or Lieutenant Governor is on trial
the presiding judge of the Supreme Court shall preside.

SEC. 3. The Governor and other State and Judicial officers
except County Judges, Justices of the Peace and Police Magis-
trates, shall be liable to impeachment for drunkeness, crimes, cor-
rupt conduct or malfeasance or misdemeanor in office, but judgment
in such cases shall not extend further than to removal from office
and disqualification to hold any office of trust or profit under the
State. The person accused, whether convicted or acquitted, shall
nevertheless be liable to indictment, trial judgment and punish-
ment according to law.

SEC. 4. All officers not liable to impeachment shall be subject
to removal for misconduct, malfeasance, crime or misdemeanor
in office or for drunkenness or gross incompetency in such manner
as may be provided by law.

SEC. 5. No officer shall exercise the duties of his office after
he shall have been impeached and before his acquittal.

SEC. 6. On trial of impeachment against the Governor the
Lieutenant Governor shall not act as a member of the Court.

SEC. 7. No person shall be tried on impeachment before he
shall have been served with a copy thereof at least twenty days
previous to the day set for trial.

SEC. 8. No person shall be liable to impeachment twice for
the same offense.

A. B. McFARLAND,

Chairman.
S. A. RAMSEY,
WM. COOK,
R. F. Lyon.

The President: What is the pleasure of the Convention with
regard to the report of the Committee on Impeachment?

Mr. Davies: I move that we adopt the report. (Motion
seconded.)

Mr. Hole: I wish again to suggest a point that was raised
last week sometime, and that is, whether these reports have been
compared with the Constitution itself; if they have not, I am op-
posed to the motion ; I have noticed a great many errors have crept
in ; I find the compared work of the Committee is very little better
than the book they compared them with; sometimes not so good;
it is well known by the members of the Convention that there are
many mistakes, and if these are compared with the mistakes, the

168 SOUTH DAKOTA DEBATES 1889

second comparison is worse than the first- I think it is improper
that these be reported as having been compared unless having
been compared with the Constitution, not with the garbled copies.

Mr. Huntley: I understand it is the duty of the Committee
on Phraseology and Arrangement to compare every report with
the copy which is in their hands and if there is any departure from
that, it is part of their duty to make any such corrections of mis-
takes as they may find.

Mr. Hole: Then why in the name of honesty, is not the
report, so reported; why do they compare them with the garbled
copies and find that they compare favorably with them? We are
stultifying ourselves in making these reports. I am objecting to
the reports being made as having been compared with the original
and found correct. I object.

Mr. Willis: This 'Convention proceeds upon the assumption
that these committees are honest. If these committees have not
made these comparisons they ought to report.

Mr. Stoddard: The way I understand it, these so-called
articles constitute the Constitution itself, of 1885. I do not see
any necessity, or any sense of each report coming in in this way;
we have got only to compare it and find it in conformity with the
Omnibus Bill and also with the Sioux Falls Constitution; we sup-
pose that these articles are the Constitution itself; it is supposed
that these printed copies constitute the Constitution and we have
not each one taken the time to look through the engrossed copy;
that is in the hands of the President, we have not had an oppor-
tunity, we remember too, undoubtedly it will go to the Committee
on Phraseology and it will be looked after there ; all that we report
is that we find such and such an article a part of the Constitution
and then it goes to the other committees.

Mr. Matson: I suggest we are becoming a little too critical;
I do not understand that we, any of us, have seen the copy of the
original Constitution, or have had it before us when we voted upon
the Sioux Falls Constitution.

Mr. Young: I do not think that the gentleman was talking
advisedly, that objected, when he used the expression, "garbled
copy" of the Constitution. These committees were comparing
these reports by the corrected copy, made by the special Committee
on Errata. I do not think he spoke authoritatively when he says

LIMITATIONS OF ENABLING ACT 169

these reports have been compared with garbled copies; they have
been compared with the corrected copy, I think in every instance.

Mr. Hole: I do not want to raise a breeze on this; I merely
wanted to call attention to what seemed to me a serious matter.
We were making reports and certifying that these are correct and
there has not been one report yet that has gone in, or but very few
as I am informed by the clerks but what have been found to be
wrong though all certified by the Chairman of the Committee. That
has been shown by every report here, and that every one of them,
or nearly all have been found to be wrong. Our Committee have
not made a report and we have not been in a position to stultify
ourselves at all : I merely want to raise this question ; we ought to
correct that certificate that is made, — the report that is made; I
think these will have to be compared with the original copy ; must
be. I think the record should be made to agree with the facts.

Mr. Hartley: I call attention to the next article; Article
VII is reported as being made correct, while it is not; the very next
Article reported by the Committee as being correct is not correct.
That is the reason that we call attention to the fact that they are
reporting matters which are not correct; we are making up a record
that is not correct. There is one copy which reads one way, and
the other printed one which reads differently ; some reports follow
one and some reports follow another; in many cases they are not
following what is the Constitution. Judge Edgerton has either
refused or failed to produce the original copy here. I think we
are entitled to the possession of the Constitution we are working
on; we ought to have it here; so that when any of these questions
arise we can turn to it immediately. With regard to what the
gentleman from Lake county (Mr. Young) said in law, a copy that
is a copy would not be received in court and the fact that they
compared the report that they are producing here with another
copy is no evidence that it is correct. We should have the Consti-
tution here every day through working hours now.

Mr. Sterling: I hardly think that any of the errors that may
be found in any of these copies are any more than what may IK-
termed clerical or typographical errors. I think these errors omu-
properly under the notice of the Committee on Phraseology and
Arrangement and whether the different Committees compare their
reports with one copy or another copy of the Constitution, I think

170 SOUTH DAKOTA DEBATES 1889

it will be found to be substantially correct. And the only inac-
curacies will be in the nature of typographical or clerical errors
and it is peculiarly the business of that Committee to correct errors
of that kind. They will not find those errors alone in these copies
which we use ; if I understand it rightly they will be found in the
original Constitution itself; I think the duties of that Committee
will extend to what is plainly a clerical error and that they will
not submit their report until they have made such comparison.
I think these reports must be taken as substantially correct, and
that when the committee certifies that they have compared them
and say these copies are copies of the different articles that they
have examined that we must so take it, until the Committee on
Arrangement and Phraseology take it and pass upon the simple
clerical errors.

Mr. Hartley: I think after we have called the attention of
the Committees to it that they have acknowledged that they have
made errors and used copies that were not correct.

(Calls of question from different portions of the house.)

The motion reaching a vote was adopted and the report of the
Committee on Impeachment and Removal from Office was declared
adopted.

The Chairman: I will now state for the information of the
Convention, I have been unable to get to work with the Committee
-but made arrangements this morning by which the Committee
on Arrangement and Phraseology will take these reports and
compare them with the original Constitution and see if there are
any errors ; as soon as Judge Edgerton returns and we have access
to the original Constitution, that Committee will commence its
work; I presume it will be able to do so tomorrow; I don't know
when the Judge expects to return.

The Chairman: The next business to come before the. Con-
vention will be the consideration of a report of the Committee on
Elections and Right of Suffrage ; there is a little error in that report ;
it calls the attention of the Convention to the fact that there is
apparently a clerical error in Section 9. I will state to the members
of the Convention that if they have not the printed Journal of the
16th day's proceedings before them, that we have extra copies
here.

Mr. Fellows: I move that the report of the Committee be

RIGHT TO VOTE 171

amended by putting the word "school" after the word "for" and
before the word "purposes" as found in the third line from the
bottom of page three of the 16th day's proceedings.

The Clerk reads report of Committee on Elections and Right
of Suffrage.
MR. PRESIDENT: —

The Committee to whom was referred Article VII, entitled
"Election and Right of Suffrage", respectfully report, that we find
the same in conformity with the Enabling Act, and recommend
that no alterations be made.

ARTICLE VIL

ELECTIONS AND RIGHT OF SUFFRAGE.

SECTION 1. Every male person resident of this State who
shall be of the age of twenty-one years and upwards, not otherwise
disqualified, belonging to either of the following classes, who shall
be a qualified elector under the laws of the Territory of Dakota at
the date of the ratification of this Constitution by the people, or
who shall have resided in the United States one year, in this State
six months, in the county thirty days and in the election precinct
where he offers his vote ten days next preceding any election, shall
be deemed a qualified elector at such election.

FIRST: Citizens of the United States.

SECOND: Persons of foreign birth who shall have declared
their intention to become citizens conformably to the laws of the
United States upon the subject of naturalization.

SEC. 2. The Legislature shall at its first session after the
admission of the "State into the Union, submit to a vote of the
electors of the State the following question to be voted upon at
the next general election held thereafter, namely: "Shall the
word 'male' be stricken from the article of the Constitution relating
to election and the right of suffrage." If a majority of the votes cast
upon that question are in favor of striking out the wrord "male",
it shall be stricken out and there shall thereafter be no distinction
between males and females in the exercise of the right of suffrage
at any election in this State.

SEC. 3. All votes shall be by ballot, but the Legislature
may provide for numbering ballots for the purpose of preventing
and detecting fraud.

SEC. 4. All general elections shall be biennial.

SEC. 5. Electors shall in all cases except treason, felony or
breach of peace, be privileged from arrest during their attendance
at elections and in going to and returning from the same. And
no elector shall be obliged to do military duty on the days of elec-
tions, except in time of war or public danger.

SEC. 6. No elector shall be deemed to have lost his residence
in this State by reason of his absence on business of the United

172 SOUTH DAKOTA DEBATES 1889

States or of this State, or in the military or naval service of the
United States.

SEC. 7. No soldier, seaman or marine in the army or navy
of the United States shall be deemed a resident of this State in
consequence of being stationed therein.

SEC. 8. No person under guardianship, non compos mentis
or insane, shall be qualified to vote at any election, nor shall any
person convicted of treason or felony be qualified to vote at any
election unless restored to civil rights.

SEC. 9. Any woman having the qualifications enumerated
in Section 1 of this article, as to age, residence, and citizenship,
and including those now qualified by the laws of the Territory,
may vote at any election held solely for school purposes, and may
hold any office in this State, except as otherwise provided for
in this Constitution.

WM. STODDARD,
WM. COOK,
C. R. WESCOTT.
JOHN SCOLLARD,
J. F. WHITLOCK,
HARRY T. CRAIG.

Which motion prevailed.

The Chairman: The question now recurrs upon the question
to adopt the report of the Committee on Elections and Right of
Suffrage as amended.

Which motion prevailed and the report of said Committee
was declared adopted.

The Chairman: The next report is a report of the Committee
on Federal Relations and Ordinance.

The Clerk read'said report as follows:
MR. PRESIDENT: —

Your Committee on Federal Relations, to which the proposi-
tion or resolution presented by Mr. Boucher, relating to compact
with the United States, was referred, would respectfully report
that we have had the same under consideration and have decided
to report herewith "An Ordinance irrevocable without the consent
of the United States and the people of this State, relating to Re-
ligious Toleration, Public Lands, Taxation of Lands, Debts of the
Territory of Dakota and Public Schools", and would recommend
the passage of said Ordinance.

Your Committee would further report that we have had under
consideration Article XXII of the Sioux Falls Constitution and
find the same is defective because it does not contain all the por-
visions required by the Omnibus bill and we would therefore recom-
mend that the said Article XXII be stricken out of the Constitution.

COMPACT WITH UNITED STATES 173

We would further report that the said ordinance contains all
the provisions of said Article XXII and such additional provisions,
not contained in said Article XXII as are required by the Omnibus
Bill, so called, or Enabling Act.
AN ORDINANCE, irrevocable without the consent of the United

States and the people of this State, relating to Religious

Toleration, Public Lands, Taxation of Lands, Debts of the

Territory of Dakota and Public Schools.

Be it ordained by the Constitutional Convention of the State
of South Dakota:

FIRST: That perfect toleration of religious sentiment shall
be secured, and that no inhabitant of this State shall ever be mo-
lested in person or property on account of his or her mode of re-
ligious worship.

SECOND: That the people inhabiting this State do agree
and declare that they forever disclaim all right and title to the
unappropriated public lands lying within the boundaries thereof,
and to all lands lying within said limits owned or held by any
Indian or Indian Tribes; and until the title thereto shall have been
extinguished by the United States, the same shall be and remain
subject to the disposition of the United States, and the said Indian
lands shall remain under the absolute jurisdiction and control of
the Congress of the United States; that the lands belonging to cit-
izens of the United States residing without this State shall never
be taxed at a higher rate than the lands belonging to residents of
this State; that no taxes shall be imposed, by this State on lands
or property therein belonging to, or which may hereafter be pur-
chased by the United States or reserved for its use. But nothing
herein shall preclude this State from taxing, as other lands are
taxed, any lands owned or held by any Indian who has severed his
tribal relations, and has obtained from the United States or from
any other person a title thereto by patent or other grant, save and
except such lands as have been or may be granted to any Indian
or Indians under any act of Congress containing a provision ex-
empting the lands thus granted from taxation but that all such
ands shall be exempt from taxation by this State so long and to
such extent as such act of Congress may prescribe.

THIRD: That the State of South Dakota shall assume and
pay that portion of the debts and liabilities of the Territory of
Dakota which the joint commission appointed by the Constitu-
tional Conventions of North Dakota and South Dakota have ad-
justed and agreed upon as the just proportion of said debt and
liabilities to be assumed and paid by South Dakota. The agree-
ment reached respecting said debts and liabilities is incorporated
in the Constitution of this State and this State obligates itself to
pay its proportion of such debts and liabilities, as therein specified,
the same as if they had been created bv this State.

174 SOUTH DAKOTA DEBATES 1889

FOURTH: That provision shall be made for the establishment
and maintenance of systems of public schools, which shall be
open to all children of this State and free from sectarian control.

FIFTH: That this Ordinance shall be and remain irrevocable
without the consent of the United States and the people of this
State.

W. H. MURPHY,

C. A. MOULTON,

C. G. SHERV OOD,
C. J. B. HARRIS,

Mr. Dickinson: Is this Ordinance an article of the Consti-
tution? It seems to me it ought to be passed through the hands
of the Schedule and Ordinance Committee; I move that it be re-
ferred to that Committee.

Mr. Jolley: This is a very peculiar article of the Constitu-
tion; I do not think that this Committee has used proper caie-
So far as the suggestion made by the gentleman from Day (Mr.
Dickinson) is concerned, there is such a provision in the Schedule.
And here is the objection that I have; it gives all lands to the
Indian and Indian Tribes and puts that land under the jurisdiction
of the United States, in other words if there is any Indian owning
any land in the Territory of Dakota, it cannot be used for public
purposes ; you cannot run a highway across it only by going to
Congress ; the point I wish to call the attention of the Convention
to is this Ordinance irrevocable without the consent of the United
States and the people of this State. The inquiry in my mind is
this; if you pass such an ordinance as this and put it in the Con-
stitution of South Dakota, you fix it so the only way it can be re-
voked so far as the State of South Dakota is concerned and so far
as the United States is concerned is by act of Congress; I don't
know but what we would have to call another Constitutional Con-
vention in order to change this.

The Chairman: Is there any second to the motion of the
gentleman from Da}- ?

Mr. Young: I second the motion.

The motion prevailed and the report of the Committee on
Federal relations was referred to the Committee on Schedule and
Ordinance.

The Chairman: The next order of business is consideration
of the memorial to Congress with relation to the securing a com-

GEOLOGICAL SURVEYS 175

mission for the purpose of making a geological and hydrographic
survey of the State. Clerk reads the report as follows
MR. PRESIDENT: —

Your Committee on Federal Relations to which was referred
the re-solution relating to a memorial to Congress for the appoint-
ment of a commission for the purpose of making a geological and
hydrographic survey of the State would respectfully report that
we have had the same under consideration and have decided to
report the accompanying memorial and recommend its passage.
A MEMORIAL to the Congress of the United States requesting

the appointment of a Commission for the purpose of making

a geological and hydrographic survey of the State.

To the Congress of the United States:

The Constitutional Convention of the State of South Dakota,
duly assembled, would respectfully represent to your honorable
body that it has been demonstrated that within the limits of Scuth
Dakota there exists what is known as an artesian basin or system,
but that its extent has net been fully determined. And that a
desire is being generally expressed by the people of South Dakota
that the matter be investigated and the extent of the system fully
determined and its availability for the purposes of agriculture and
manufactures be determined.

Now, therefore, the said Convention would respectfully
memorialize your honorable body and request you to appoint at
'the earliest possible time a Commission for the purpose of making
and with power to make a thorough and complete geological and
hydrographic survey of the State, including mineralogical forma-
tion of 1 lie Black Hills and the artesian basin of South Dakota,
and that you make the necessary appropriations therefor.

W. H. MURPHY,
C. A. HOULTON.

C. G. SilKKWOOD,

C. J. B. HARRIS.

The Chairman: What is the pleasure of the Convention in
regard to this memorial?

Mr. Davies: I move you, Mr. President, that wre adopt this
memorial.

Motion scvonded.

Mr. Dickinson: I would ask if there does not already exist
a geological survey of this section of the Tinted States, and further
I would inquire whether or not, after we are admitted, as a state,
the government would not simply refer it back to us, and say,
make such surveys as you desire.

Mr. Hartley: My understanding is that when we become a

176 SOUTH DAKOTA DEBATES 1889

state these matters will have to be attended to by ourselves ; the
United States make these surveys for the territories and not for
the states.

Mr. Clough: I recall being on a train crossing the State of
Wisconsin from Madison to Janesville and meeting a gentleman
who said he represented the United States Surveying Service; he
said he was sent out by the Smithsonian Institute at the expense
of the United States, to a certain section of the country I spent
the larger part of the day with him and I understood from him
that the government through the Smithsonian Institute carries
on these surveys. I know in the State University we have been
discussing this subject and we have the understanding that while
we will do something ourselves as a state, the United States Govern-
ment through the Smithsonian Institute will carry on these surveys
such as we ask today.

Mr. Davies: In view of the importance of this question it
can do no harm making the application to Congress ; I do not think
there is any question about the authority of the United States to
make this survey ; this irrigation subject and the matter of the
artesian well system is an important subject. And the eyes of the
people of this United States are upon that question and if there is
anything we can do to help ourselves and our sister states in this
matter of irrigation let us do it ; we certainly can try and no harm
can be done and perhaps great good will result.

The matter under consideration reaching a vote the motion
prevailed and the memorial was declared adopted.

The Chairman: The next is the report of the Committee on
Education and School Lands. With regard to that report I would
say, I believe Mr. Humphrey is Acting Chairman and when he
went away he asked me to have that held open until his return;
I will suggest further that that is a very important report. If I
was on the floor of the Convention I would ask that the Convention
hold it over until tomorrow.

Mr. Huntley: I move that the consideration of this report
be postponed until tomorrow.

The motion was duly seconded and adopted.

The Clerk read the report of the Committee on State Insti-
tutions and Public Buildings.

REPORT OF COMMITTEE 177

Sioux Falls. South Dakota, July 18, 1889.
MR. PRESIDENT: —

Your Committee on State Institutions and Public Buildings,
to whom was referred Article XIV, entitled, "State Institutions"
have considered the same and compared said Article XIV with the
Sioux Falls Constitution and the Act of Congress known as the
"Omnibus Bill" and have instructed me to report the following
as Article XIV of the Constitution and that the same is in ac-
cordance with the Sioux Falls Constitution andthechangesthereto
authorized by the Omnibus Bill. The insertion of the word
"South" before Dakota in Section 1 comprises all the changes
made.

ARTICLE XIV.

STATE INSTITUTIONS.

SECTION. 1. The charitable and penal institutions of the
State of South Dakota shall consist of a penitentiary, insane hos-
pital, a school for the deaf and dumb, a school for the bilnd and a
reform school.

SEC. 2. The State institutions provided for in the preceding
section shall be under the control of a State Board of Charities
and Corrections, under such rules and restrictions as the Legisla-
ture shall provide; such Board to consist of not to exceed five
members, to be appointed by the Governor and confirmed by the
Senate, and whose compensation shall be fixed by law.

EC. 3. The State University, the Agricultural College, the
Normal Schools, and other educational institutions that may be
sustained either wholly or in part by the State shall be under the
control of a board of nine members,. appointed by the Governor
and confirmed by the Senate, to be designated the Regents of Ed-
ucation. They shall hold their office for six years, three retiring
every second year

The Regents, in connection with the faculty of each institu-
tion shall fix the course of study in the same.

The compensation of the Regents shall be fixed by the Legis-
lature.

SEC. 4. The Regents shall appoint a board of five members
for each institution under their control, to be designated the Board
of Trustees. They shall hold office for five years, one member re-
tiring annually. The Trustees of each institution shall appoint
the faculty of the same and shall provide for the current manage-
ment of the institution but all appointments and removals must
have the approval of the Regents to be valid. The Trustees of
the several institutions shall receive no compensation for their
services, but they shall be reimbursed for all expenses incurred
in the discharge of their duties, upon presenting an itemized ac-
count of the same to the proper officer. Kach Hoard of Trustees

178 SOUTH DAKOTA DEBATES, 1889.

at its first meeting shall decide by lot the order in which its members

shall retire from office.

SEC. 5. The Legislature shall provide that the science of

mining and metallurgy be taught in at least one institution of

learning under the patronage of the State.

F. G. YOUNG, Chmn.
WM. VAN EPS,
C. G. HARTLEY,
J. DOWNING,
CHAUNCEY L. WOOD,
C. BUECHLER,
R. A. SMITH,
J. F. WOOD.

The Chairman: What is the pleasure of the Convention in
regard to this report?

Mr. Wescott: I move that the report be adopted.
Motion was duly seconded and by vote of the Convention
was declared adopted.

The Chairman: The next report is the report of the Committee
on Exemptions.

The Clerk read said report as follows:

Sioux Falls, Dakota, July 18, 1889.
MR. PRESIDENT:.. .

Your Committee on Exemptions to whom was referred Section
4, Article XXI, entitled, "Exemptions", have considered the same
and have compared said Section 4, in Article XXI with the Sioux
Falls Constitution and the Act of Congress known as the "Omnibus
Bill" and have instructed me to report the following as Section
4, Article XXI of the Constitution and that the same is in accordance
with the Sioux Falls Constitution and the changes thereto author-
ized by the "Omnibus Bill, without any amendments.

SEC. 4. EXEMPTIONS. — The right of the debtor to enjoy the
comforts and necessaries of life shall be recognized by wholesome
laws exempting from forced sale a homestead, the value of which
shall be limited and denned by law to all heads of families, and a
reasonable amount of personal property, the kind and value of
which to be fixed by general laws.

C. BUECHLER, Chmn.
J. A* FOWLES,
S. S. PECK,
GEO. H. CULVER,
GEO. C. COOPER,
S. D. JEFFRIES,
M. R. HENINGER,
C. G. COATS.

BANKING AND CURRENCY 179

Mr. Sterling: I move the adoption of the report.

Motion duly seconded and by vote of the Convention the re-
port was adopted.

The Clerk reads the report of the Committee on Banking and
Currency.

Sioux Falls, Dakota, July 19, 1889.
MR. PRESIDENT: —

Your Committee on Banking and Currency to whom was re-
ferred Article XVIII, entitled, "Banking and Currency," have
considered the same and have compared said Article XVIII with
the Sioux Falls Constitution and the Act of Congress known as
the "Omnibus Bill", and have instructed me to report the fol-
lowing as Article XVIII of the Constitution and that the same is
in accordance with the Sioux Falls Constituticn and the changes
thereto authorized by the Omnibus Bill.
ARTICLE XVIII.

BANKING AND CURRENCY.

SECTION 1. If a general banking law shall be enacted it shall
provide for the registry and countersigning by an officer of this
State of all bill or paper credit designed to circulate as money, and
require security to the full amount thereof, to be deposited with
the State Treasurer, in the approved securities of the State or of
the United States to be rated at ten per cent., below their par
value, and in case of their depreciation the deficiency shall be made
good by depositing additional securities.

SEC. 2. Every bank, banking company or corporation shall
be required to cease all banking operations within twenty years
from the time of its organization, and promptly thereafter close
its business, but shall have corporate capacity to sue and be sued
until its business is fully closed; but the Legislature may provide
by general law for the reorganization of such banks.

SEC. 3. The shareholders or stockholders of any banking
corporation shall be held individually responsible and liable for
all contracts, debts and engagements of such corporation to the
extent of the amount of their stock therein, at the par value thereof,
in addition to the amount invested in such share of stock and such
individual liability shall continue for one year after any transfer or
sale of stock by any stockholder or stockholders.

J. G. DAVIS, Chmn.
S. A. RAMSEY,
S. B. MCFARLAND,

S. F. HUNTLEY,
C. J. BUECHLER,
C. S. GlFFORD.

Mr. Young: I move the adoption of the report.
Motion duly seconded.

180 SOUTH DAKOTA DEBATES 1889

Mr. Hartley: If you will excuse me, I notice that in 1885,
was submitted Sec. 2, a section that I do not clearly understand;
is it intended to relate to all banks?

The Chairman: I cannot answer that.

Mr. Hartley: If it is intended to reach all banks we are
reaching too far; if it is intended to what we call State Banks it
is all right.

Mr. Davies: The Omnibus Bill does not permit us to know
anything about it; it is simply a question of changes.

The motion to adopt prevailed.

The Clerk next reads the report of the Committee on Seal
and Coat of Arms as follows:

Sioux Falls, Dakota, July 19, 1889.
MR. PRESIDENT: —

Your Committee on Seal and Coat of Arms, to whom was re-
ferred Section 1, of Article XXI of the Constitution, entitled,
"Seal and Coat of Arms", -having had the same under careful con-
sideration, beg leave to report the following changes necessary to
comply with the provisions of the Omnibus Enabling Act, to-wit:
To insert the word "South" before the word Dakota in the two in-
stances where the words "State of Dakota" appear; and we here-
with report Section 1, Article XXI, with the change aforesaid in-
corporated therein, viz:

ARTICLE XXI.

MISCELLANEOUS.

SECTION 1. SEAL AND COAT OF ARMS. — The design of the
great seal of South Dakota shall be as follows: A circle within
which shall appear in the left foreground a smelting furnace and
other features of mining work. In the left background a range of
hills. In the right foreground a farmer at his plow. In the right
background a herd of cattle and a field of corn. Between the two
parts thus described shall appear a river bearing a steamboat.
Properly divided between the upper and lower edges of the circle
shall appear the legend, "Under God the People Rule", which
shall be the motto of the State of South Dakota. Exterior to this
circle and within a circumscribed circle shall appear, in the upper
part the words "State of South Dakota". In the lower part the
words, "Great Seal", and the date in Arabic numerals of the year
in which the State be admitted to the Union.

And respectfully recommend the adoption of the change and
the submission of the Article as amended.

C. A. HOULTON,
| H. A. HUMPHREY,

IJOHN SCOLLARD,

J. F. WOOD.

OATH OF OFFICE 181

The Chairman: What is the pleasure of the Convention in
regard to the report of the Committee on Seal ?
A Voice: I move its adoption.

Said motion being submitted to a vote of the Convention
was duly adopted.

The Chairman: The next report is the report of the Committee
on Miscellaneous Subjects.

The report was read by the Clerk as follows:

Sioux Falls, Dakota, July 18, 1888.
MR. PRESIDENT: —

Your Committee on Miscellaneous Subjects, to whom was re-
ferred Article XXI, Section 3, beg leave to report that in our opinion
no change is necessary in said section, which is hereto attached.

SEC. 3. OATH OF OFFICE.— Every person elected or appointed
to any office in this State, except such inferior officers asmaybe
by law exempted, shall, before entering upon the duties thereof,
take an oath or affirmation to support the Constitution of the
United States and of this State, and faithfully to discharge the
duties of his office.

H. W. EDDY, Chmn.
W. L. WILLIAMS,
WM. COOK,
WM. STODDARD,
SANFORD PARKER,
C. G. HARTLEY!

The Chairman: What is the pleasure of the Convention with
regard to this report ?

Mr. Wood: I move that the report be adopted.

Motion seconded and reaching a vote, was duly adopted and
so declared by the Chair.

The Chairman: The next report is the report of the Com-
mittee on Executive and Administrative.

The Clerk read the report as follows:

Sioux Falls, Dakota, July 18, 1889.
MR. PRESIDENT: —

Your Committee on Article IV of the Sioux Falls Constitution,
"Executive and Administrative", have considered the same and
have compared said Article IV with the Act of Congress known as
the "Omnibus Bill", and have instructed me to report the following
as Article IV of the Constitution, and that the same is in accordance
with the Sioux Falls Constitution and the Omnibus Bill.

C. R. WESCOTT.
Chairman of Committee.

182 SOUTH DAKOTA DEBATES 1889

ARTICLE IV.

EXECUTIVE DEPARTMENT.

SECTION 1. The executive power shall be vested in the Gov-
ernor who shall hold his office for two years ; a Lieutenant Governor
who shall be elected at the same time and for the same term.

SEC. 2. No person shall be eligible to the office of Governor
or Lieutenant Governor except a citizen of the United States and
a qualified elector of the State, who shall have attained the age of
thirty years, and who shall have resided two years next preceding
the election within the State or Territory, nor shall he be eligible
to any other office during the term for which he shall have been
elected.

SEC. 3. The Governor and Lieutenant Governor shall be
elected by the qualified voters of the State at the time and place
of choosing members of the Legislature. The persons respectively
having the highest number of votes for Governor and Lieutenant
Governor shall be elected, but if two or more shall have an equal
and highest number of votes for Governor or Lieutenant Governor,
the two houses of the Legislature at its next regular session shall
forthwith, by joint ballot, choose one of such persons for said
office. The returns of the election for Governor and Lieutenant
Governor shall be made in such a manner as shall be prescribed by
law.

SEC. 4. The Governor shall be Commander-in-Chief of the
military and naval forces of the State, except when they shall
be called into the service of the United States, and may call out
the same to execute the laws, suppress insurrection and repel in-
vasion. He shall have power to convene the Legislature on ex-
traordinary occasions. He shall at the commencement of each
session communicate to the Legislature by message, information of
the condition of the State, and shall recommend such measures
as he shall deem expedient. He shall transact all necessary business
with the officers of the government, civil and military. He shall
expedite all such measures as may be resolved upon by the Legis-
lature and shall take care that the laws be faithfully executed.

SEC. 5. The Governor shall have the power to remit fines and
forfeitures, to grant reprieves, commutations and pardons after
conviction for all offenses except treason and cases of impeachment ;
provided, that in all cases where the sentence of the court is capital
punishment, imprisonment for life or for a longer term than two
years, or a fine exceeding $200 no pardon shall be granted, sentence
commuted or fine remitted except upon the recommendation in writ-
ingof aboardof pardons consisting of the presiding judge, Secretary
of State and Attorney General, after full hearing in open session, and
such recommendation, with the reasons therefor, shall be filed in
the office of the secretary of State; but the Legislature may by law
in all cases regulate the manner in which the remission of fines,

BRIBERY 183

pardons, commutations, and reprieves may be applied for. Upon
conviction for treason he shall have the power to suspend the
execution of the sentence until the case shall be reported to the
Legislature at its next regular session, when the Legislature shall
either pardon or commute the sentence, direct the execution of
the sentence or grant a further reprieve. He shall communicate
to the Legislature at each regular session, each case of remission
of fine, reprieve, commutation or pardon granted by him in the
cases in which he is authorized to act without the recommendation
of the said Board of Pardons, stating the name of the convict, the
crime of which he is convicted, the sentence and its date, and the
date of the remission, commutation, pardon or reprieve, with his
reasons for granting the same.

SEC. 6. In case of death, impeachment, resignation, failure
to qualify, absence from the State, removal from office, or other
disability of the Governor, the powers and duties of the office for
the residue of the term, or until he shall be acquitted, or the dis-
ability removed, shall devolve upon the Lieutenant Governor.

SEC. 7. The Lieutenant Governor shall be President of the
Senate, but shall have only a casting vote therein. If, during a
vacancy in the office of Governor, the Lieutenant Governor shall
be impeached, displaced, resign or die, or from mental or physical
disease or otherwise become incapable of performing the duties
of his office, the Secrteary of State, shall act as Governor until
the vacancy shall be filled or the disability removed.

SEC. 8. When any office shall from any cause become vacant
and no mode is provided by the Constitution or law for filling such
vacancy, the Governor shall have the power to fill such vacancy
by appointment.

SEC. 9. Every bill which shall have passed the Legislature
shall, before it becomes a law, be presented to the Governor. If
he approve he shall sign it, but if not, he shall return it with his
objection to the house in which it originated, which shall enter
the objection at large upon the Journal and proceed to re-
consider it. If, after such reconsideration, two-thirds of the mem-
bers present shall agree to pass the bill, 'it shall be sent, together
with the objection, to the other house, by which it shall likewise
be reconsidered, and if it be approved by two-thirds of the members
present , it shall become a law ; but in all such cases the vote of both
houses shall be determined by the yeas and nays, and the names
of the members voting for and against the bill shall be entered upon
the Journal of each house respectively. If any bill shall not be
returned by the Governor within three days (Sundays except ed) af-
ter it shall have been presented to him, the same shall be a law,
unless the Legislature shall by its adjournment prevent its re--
turn; in which case it shall be filed, with his objection, in the office

184 SOUTH DAKOTA DEBATES 1889

of the Secretary of State, within ten days after such adjournment,
or become a law.

SEC. 10. The Governor shall have power to disapprove of
any item or items of any bill making appropriations of money
embracing distinct items and parts or parts of the bill approved
shall be a law, and the item or items disapproved shall be void,
unless enacted in manner following: If the Legislature be in ses-
sion he shall transmit to the House in which the bill originated a
copy of the item or items thereof disapproved, together with his
objection thereto, and the items objected to shall be separately
reconsidered, and each item shall then take the same course as is

prescribed for the passage of bills over the executive veto.

SEC. 11. Any Governor of this State who asks, receives or
agrees to receive any bribe upon any "understanding that his of-
ficial opinion, judgment or action shall be influenced thereby, or
who gives, or offers, or promises his official influence in consideration
that any member of the Legislature shall give his official vote or
influence on any particular side of any question or matter upon which
he may be required to act in his official capacity, or who menaces any
member by the threatened use of his veto power or who offers or
promises any member that he, the said Governor, will appoint any
particular person or persons to any office created or thereafter to
be created ; in consideration that any member shall give his official
vote or influence on any matter pending or thereafter to be intro-
duced into either House of the said Legislature, or who threatens any
member that he, the said Governor, will remove any person or
persons from any office or position with intent to in any manner
influence the official action of said members, shall be punished in
the manner now, or that may hereafter be provided by law, and
upon conviction thereon shall forfeit all right to hold or exercise
any office of trust or honor in this state.

SEC. 12. There shall be chosen by the qualified electors
of the State at the times and places of choosing members of the
Legislature, a Secretary of State, Auditor, Treasurer, Superin-
tendent of Public Instruction, Commissioner of School and Public
Lands, and Attorney General, who shall severally hold their offices
for the term of two years, but no person shall be eligible to the
office of Treasurer for more than two terms consecutively. They
shall respectively keep their offices at the seat of government.

SEC. 13. The powers and duties of the Secretary of State,
Auditor, Treasurer, Superintendent of Pubilc Instruction, Com-
missioner of School and Public Lands, and Attorney General shall
be prescribed by law.

C. R. WESCOTT,

Chairman of Executive and Administrative Com.
Mr. Jolley: I move its adoption.

CONSIDERATION OF REPORTS 185

Motion duly seconded by Mr. Young.

Motion prevailed and the report was declared adopted.

Clerk reads the report of Committee on Manufactures and
Agriculture as follows:
To THE PRESIDENT OF THE CONSTITUTIONAL CONVENTION SOUTH

DAKOTA:

We, the undersigned Committee on Manufactures and Agri-
culture, do hereby respectfully report that on careful examination
we find that no changes are required in those parts of the Consti-
tution, submitted to our inspection, in order to comply with the
provisions of tht Enabling Act passed by the Congress of the
United States.

Sioux Falls. July 19, 1889.

T.W. P. LEE,
J. F. WHITLOCK,
R. A. SMITH,

T. F. DlEFENDORF,
C. S. GlFFORD,

E. G. EDGERTON.
C. R. WESCOTT,
R. F. LYONS,

Mr. Willis: I would like to ask the Chairman of that Com-
mittee for the chapter, verse and page where that report is; I am
in favor of the Preamble.

Mr. Jeffries: I move that it be referred back to the Committee
for amendment, to comply with the report of the Committee on
Rules.

Mr. Davies: I move that it be referred to the Committee
on Miscellaneous Subjects.

Mr. Young: I move its adoption as read.

Motion duly seconded.

Mr. Willis : What would be the number of the Article ?

Mr. Fellows: I move that we postpone the considerat;on of
that report.

Mr. Lee: I wish to make a remark. I was very careful re-
garding this Constitution; I went all through Spink County saving
to my constituents that it was the best Constitution I ever read;
I dislike very much to go back on my record. When I found out
there was no such department here, I disliked that very mu-. h.
inasmuch as that is a very important question. The hand that
rocks our cradles rocks the world and the hand that holds the
plow, feeds the occupants of the cradles I wish to say right here

186 SOUTH DAKOTA DEBATES 1889

in public that this Convention made a mistake in appointing such
a Committee, but I think we had better let it go; it looks well on
paper and does no harm.

The report coming to a vote, was adopted, amidst laughter.

The Chairman: The next is the consideration of the report
of the Committee on Military affairs.

The report was read by the Clerk, as follows:

Sioux Falls, Dakota, July 18, 1889.
MR. PRESIDENT: —

Your Committee on Military Affairs to whom was referred
Article No. XV, entitled "Militia", have considered the same and
have compared said Article No. XV with the Sioux Falls Consti-
tution and the Act of Congress, known as the Omnibus Bill, and
we report the following as article XV of the Constitution and that
the same is in accordance with the Sioux Falls Constitution, and
the changes thereto authorized by the Omnibus Bill, viz: The
name of South Dakota in Sections One and Six in lieu of Dakota.

SECTION 1. The militia of the State of South Dakota, shall
consist of all able-bodied male persons residing in the State, be-
tween the ages of 18 and 45 years, except such persons as now are
or hereafter may be exempted by the laws of the United States
or of this State.

SEC. 2. The Legislature shall provide by the law for the
enrollment, uniforms, equipment and discipline of the militia
and the establishment of voulnteer and such other organizations,
or both, as may be deemed necessary for the protection of the
State, the preservation of order and the efficiency and good of
the service.

SEC. 3. The Legislature in providing for the organization
of the militia, shall conform, as nearly as practicable, to the regu-
lations for the government of the armies of the United States.

SEC. 4. All militia officers shall be commissioned by the
Governor and may hold their commissions for such period of time
as the Legislature may provide, subject to removal by the Governor
for cause, to be first ascertained by a Court Martial, pursuant
to law.

SEC. 5. The militia shall in all cases, except treason, felony,
or breach of peace, be privileged from arrest during their atten-
dance at muster and elections, and in going and to returning from
the same.

SEC. 6. All military records, banners and relics of the State,
except when in lawful use, shall be preserved in the office of the
Adjutant General as an enduring memorial of the patriotism and
valor of South Dakota, and it shall be the duty of the Legislature
to provide by law for the safe-keeping of the same.

SEC. 7. No person having conscientious scruples against

MILITARY AFFAIRS 187

bearing arms shall be compelled to do military duty in time of
peace.

Respectfully submitted,

E. E. CLOUGH,
W. H. MATSON,
T. W. P. LEE,
W. H. GODDARD.

Further:

There was submitted to your Committe'e a petition from Jacob
Schmidt and other Russian citizens, asking that Section 7, of
Article XV, be so amended as at all times exempt persons having
such religious scruples from doing military duty; the Committee
finds that it is not possible for this Convention to so annul said
Section 7, Article XV.

E. E. CLOUGH,
Chairman Committee.

The Chairman: What is the pleasure of the Convention? I
move that the report of the Committee on Military Affairs be
adopted.

Motion duly seconded.

The Clerk read the further report by the same Committee with
relation to a petition by Jacob Schmidt and other Russian citizens,
exempting certain persons having religious scruples against bear-
ing arms for military duty.

Mr. Clough: I would like to say that Mr. Williams (of Bon
Homme) desired us to change the word "annul" found in the last
line of the report to "amend".

The Chairman: If there is n-) Abjection, that amendment
will be made. The Chair hears n objection, the report will be
so amended. What is the pleasure of the Convention with regard
to this report?

Mr. Dickinson: I move its adoption.

Which motion prevailed.

The Clerk next read the report of the Committee on County
and Township Organization, as follows:

Sioux Falls, Dakota, July 20, 1889.
MR. PRESIDENT: —

Your Committee on County and Township Organization, to
whom was referred Article IX, entitled, "County and Township
Organization," have considered the same and have compared said
article with the Sioux Falls Constitution and the Act of Congress
known as the Omnibus Bill, and have instructed me to report the
following as Artic-k- IX (0) of the Constitution, and that the same

188 SOUTH DAKOTA DEBATES 1889

is in accordance with the Sioux Falls Constitution and the changes
thereto authorized by the Omnibus Bill. That no changes are
made excepting prefixing the word "South" to Dakota.

J. F. WHITLOCK,

Chairman. .

The Chairman: What is the pleasure of the Convention?

A Voice: I move its adoption.

Motion duly seconded.

Mr. Dickinson: I see that it compares with the corrected copy
except that the word "other" should be inserted in the second line
of the Sixth Section, making it read "Such other counties"; I
move that that correction be made in accordance with the original
draft of the Constitution by inserting the word "other" in Section
Six the second line, before the word "county"— "Such other
county".

Which motion was duly seconded and by vote of the Conven-
tion, adopted.

Mr. Willis: In the Preamble to this report — in the last line
but one, "That no changes are made except prefixing the word
"South" to Dakota. I think that is not proper; the word "South"
is not a prefix. I move that it be so amended instead of using
the word "prefix" use the word insert.

Motion seconded.

The motion was given an affirmative vote by the Convention
and the report was declared so amended.

A Voice: I move the adoption of the report as amended.

Mr. Atkinson: I would like to have the report as amended,
read.

The Clerk reads the changes made in the original report.

The motion to adopt the report thereupon prevailed.

The Chairman: That completes the special order for today;
what is the further pleasure of the Convention?

Mr. Clough: I would like to raise one question of privilege;
I brought up from the University of Dakota, our State University ,n
these catalogues, (indicating) and we specially ask the members
to take them home for reference. I would like to say that we had
three thousand printed and before they were out there was ap-
plication for two thousand of them ; it will show there is some demand
for them ; I would like to have'you take them home.

Mr. Fellows: I would like to call the attention of the Con-

ROUTINE 189

vention to the fact that the Journal for the sixteenth day ought
to be approved ; that is the day we adjourned without doing any
business, and it was neglected. I move you, Sir, that it be now
approved.

The motion prevailed upon coming to a vote.

The Chairman: I will have a letter read.

Chicago, July 19th, 1889.

CHAIRMAN* OF THE CONSTITUTIONAL CONVENTION:
DEAR SIR: —

I mail you today a copy of Judge Altgeld's work on "Our Penal
Machinery" which gives statistics and general information in
regard to the different penal systems which it is thought might be
of service to the members of the Convention; if you will kindly
have the Clerk send us the names and address of the members of
the Convention we will mail each a copy free of charge. The work
is highly recommended by the ablest prison reformers of the country
and is distributed in the interest of prison reform.
Very respectfully yours,

C. J. FORD.
Suite 53, 115 Monroe St., Chicago.

The Chairman: I will state to the Convention that I took the
liberty this morning to request the Clerk of the Convention to send
in the names as this is quite a large book and one I presume the
gentlemen would like to have anyway ; I have requested the Clerk
to forward the names.

Mr. Whitlock: I move we do now adjourn.

Which motion prevailed and the Convention stood adjourned.

TWENTY-FIRST DAY.

Sioux Falls, Dakota, July 24th, 1889.
Two o'clock P. M.

Pursuant to adjournment the Convention was called to order
by the President.

Prayer by the Rev. Mr. Willis.

Almighty God, we recognize that by Thy will princes rule and
kings decree justice. Assured are we from the lives of men and
from history that woe is that nation that makes its plans and directs
its efforts without reference to the divine wisdom, and divine
providence. Aid, Thou, us in the deliberations of this session;
everemore guide and direct the efforts of this new State about to
be. for the Redeemer's sake.

AMEN.

The minutes of the preceding day were read by the Clerk and
approved.

Mr. Willis: I notice a repetition, of the paragraph on the
twelfth page before the report of the Committee on Seal and Coat
of Arms ; repetition of the whole paragraph on the same page.

The President: The Clerk will make the correction.

Mr. Sterling: I notice some clerical errors in the report of
the Judiciary Committee. I would like to have the Clerk correct
the third line of the first paragraph. * * *

Under the order of business, Presentations of Communications
and Petitions, the Clerk read the following communication:

192 SOUTH DAKOTA DEBATES 1889

Huron, Dakota, July 22, 1889.

At a mass meeting of the citizens of Huron, Beadle County,
on Monday evening, July 22nd, 1889, it was unanimously ordered
that the Secretary of the mass meeting be requested to ask the
Constitutional Convention, now in session at Sioux Falls, to adopt
the Australian system of voting on the first day of October next,
as expressed in the attached bill.

SIGNED: L. K. CHURCH,

Chairman.

The President: The Communication will be referred to the
Committee on Schedule.

Unfinished business of the previous day.

Reports of Standing Committees.

Mr. Van Tassel: The Congressional and Legislative Appor-
tionment Committee are ready to report as soon as the report is
signed.

Mr. Hole: The Committee on Schedule submit our report
on the Prohibition clause, — Article XXIV, and also Article XXV —
Minority Representation, which were submitted to us.

Mr. Goddard: The Committee on Revenue and Finance
report no changes ; our report has been compared with the report of
the Committee on Errata and no changes were made.

The President: Consideration of reports of Standing Com-
mittees.

Reports of Select Committees.

Mr. Jolley; Your Committee on Rules have instructed me
to report the following:

Sioux Falls, Dakota. July 24, 1889.
MR. PRESIDENT: —

Your Committee on Rules have instructed me to report that
they recommend the two following additional rules for the govern-
ment of this Convention, to-wit:

RULE 46.

That all claims and accounts against this Convention not paid
by the United States, shall at once be presented to the Committee

JUDICIAL CIRCUITS 193

on Expenses of the Convention, and shall be considered by that
Committee and reported to this Convention; and after any claim
is allowed by this Convention, a certificate of indebtedness shall
be issued and signed by the President and Secrteary of this Conven-
tion to the person to whom said claim is allowed, in substantially
the following form:

Sioux Falls, Dakota, 1889.

That A.*B has acted as

of the Constitutional^Convention held at Sioux Falls, Dakota, in

the year 1889, for days, at $ per day, and

is entitledito the sum of as allowed by said Con-

s itutional Convention.

President.

Chief Clerk.

RULE 47.

That each member and officer of this Convention shall have a
certificate of indebtedness issued to him, as provided by Rule 46,
at the same per diem as is allowed by the United States in the Omni-
bus Bill, for each and every day he attends this Convention, after
the appropriation of $20,000, made by the United States is ex-
pended.

JOHN L. JOLLEV,

Chairman.

Mr. Jolley: I move the adoption of these rules.

Which motion prevailed and Rules 46 and 47 were declared
adopted.

The President: Presentation of Resolutions >and Propositions
Relating to the Constitution.

Special orders. The report of the Committee on Education
and School Lands.

Judge Corson: I move that that report be laid over until
tomorrow.

Which motion was duly seconded.

The President: It is moved that the report of the Committee
on School Lands and Education be postponed until tomorrow and
made a special order.

The motion prevailed.

194 SOUTH DAKOTA DEBATES, 1889.

The report from the Judiciary Committee was read by the
Clerk as follows: (Here insert it.)

Mr. Sterling: I move 'the adoption of the report
Motion seconded.

Mr. Spooner: I move as a substitute that the report of the
Judiciary Committee be adopted with the exception of the proposed
division of the Territory included in the Third, Fifth and Sixth
Judicial Circuits and that the Territory included in said proposed
Circuits containing the following counties namely: •

THIRD CIRCUIT: The Counties of Brookings, Deuel, Hamlin,
Codington, Clark, Spink, Grant, Roberts, and all that part of the
Whapeton and Sisseton Indian Reservation in this State, except
that portion lying in Marshall County.

FIFTH CIRCUIT: The Counties of Kingsbury, Beadle, Hand,
Hyde, Hughes, Sully, Potter, Faulk, and Stanley."

SIXTH CIRCUIT: The Counties of Day, Marshall, Brown,
McPherson, Edmunds, Walworth, Campbell, and all the territory
lying within said state not included in any other judicial circuit.
I move this as a substitute. (Motion seconded.)

Mr. Dickinson: In behalf or Day County, I also wish to
second the substitute.

Mr. Sterling: I desire to say upon this question, simply, that
this matter was very fully discussed by the Committee on
Judiciary. That at least three days were given to the discussion
of the question of apportionment of these Districts. And that in
addition to the three days' discussion in Committee, the matter
has been freely discussed ever since the Convention met, by indi-
vidual members of the Convention. That in addition to the views
presented by the different members of the Committee before the
Committee, there were the views presented by the different members
of the Convention, who are not members of the Committee; and
that a full and fair hearing was given to every one who had any
adverse views to offer to the circuits as finally apportioned. I
think Mr. Chairman, that no one can say but what there was the
fullest and freest discussion and that this Committee went to work
in earnest with the desire to do what was best for the entire State
in the apportionemnt of these Judicial Circuits. And after all
this discussion, after this thought upon the matter they have pre-
sented to you this report as the very best that could be done. There
are somewhat different views in regard to this. Some counties are
not wholly satisfied. It is no wonder to us that there may be two

JUDICIAL CIRCUITS 195

or three counties among all these counties which, taking into con-
sideration the matter of accessibility, are objecting, in that they are
not joined to counties that they would desire to be joined to; it
is no wonder that they should not be perfectly satisfied. Yet,
taking the whole number of Circuits, — taking the population com-
prised within the different circuits, I do not think that a more sat-
isfactory solution of this question can be presented than the one
presented in this report.

Mr. Couchman: I rise briefly to say that I see a serious dif-
ficulty with the report. I come before this Convention with con-
fidence, believing they are a fair body and men that want to do
justice to all parts of South Dakota. Therefore, I speak with con-
fidence when I come before you expecting that you will act upon
that basis. I know that after the Committee had agreed upon
this majority report in talking with the members of this Convent on
they said to me, (and no doubt to others) "Had we fully understood
the matter as we now understand it, a different report would have
been presented to the Convention". As the Chairman of that
Committee has stated, we all had a hearing before that Committee.
Yes, we went before that Committee, but before we were permitt d
to go before that Committee, what was done? They had met
and had agreed to a certain report (Shall I say it!) had sworn to
stand by it, even pledged to it, and that pledge was so strong that
there was no breaking through it. Argument was unnecessary,
reason was unavailing, they were bound on that report, and our
meeting with them and objecting repeatedly and presenting our
case was of no effect whatever. Then what could we do? Noth-
ing; more or less than come before this Convention, which we
believe and hope will seek to do justice to all portions of South
Dakota. We are assembled for Constitutional purposes; it is not
a political body, thank God. If it was that kind of a body, wi-
would expect just about the same proceedings that have been gone
through with by that Committee in making up the circuits for the
Judicial Districts of this State. But we believe that in making up
these c'rcuits it should be done fairly ; not an attempt by portions of
the districts to arrange for the benefit of any particular man, nor
set of men, or of some county. After the circuits are formed and
any particular circuit is for a man they desire to come before the
circuit, let him come, but do not let him be brought into pr m-
inence directly by a circuit formed for that express purpose Now

196 SOUTH DAKOTA DEBATES 1889

believing gentlemen, that you are a fair-minded body, I want to
i-how you where we are placed in this judicial (?) shuffle. And say
if it is fair, — and say if it is right, — and say if it is just, — and say
if it is honorable. Gentlemen, we are in the northwest corner of
South Dakota, that is of the populous portion of the State; but one
county lying north of us upon the river; the County of Campbell lies
north of us. We are placed in a Judicial C rcuit lying down the
river; there are counties that would have over one hundred miles
to ride down a wagon road, across prairie to the place where the
heft of our business shall be done if this judicial circuit is formed.
Over one hundred miles through the bluffs, down one bluff, through
the ravines, and then up and down another and so on through three
counties, down to where our business will be done. If we don't
like this road we can go through Aberdeen, from Aberdeen to Huron,
and from there we can go to Pierre. And in doing that, gentlemen,
pass through a number of circuits before we get to our place of
business. Gentlemen, is it fair, is it right? Do you want us to
do it when we can have a judicial circuit here that we are all sat-
isfied with, and pleased with, and anxious to have adopted? There
is a tier of counties along the northern boundaries of this State that
we believe every gentleman in the Convention are unanimous in
forming into one judicial circuit. Here we have a road running by
or through every county. We can go to that road, then go east,
stopping off at Roscoe, Ipswich, Aberdeen, or wherever business
and return the same day; shall we go to all this trouble, all of this
expense and expense of time that will be necessary to do business
in that Judicial Circuit that is there formed in this report? Gentle-
men, I believe you will say no. Let me say further, when that
country was settled up, we came to Aberdeen and then passed
westerly towards the river, forming acquaintances as we went.
Let us have a judicial circuit composed of men who are acquainted
with each other, who like the ways of each other in business trans-
actions, in judicial transactions and whatever relations they
have, who are pleased with each other. We would like to re-
main together. We are not afraid of being swallowed by Aber-
deen because it is a larger county than ours, not by any means ; we
go to Aberdeen, it is a large place to be sure and in Conventions,
of course, they outnumber us three to one; they outnumber us
in this Convention, but what do we care so long as they are hon-
orable with us as they have always been. A better class of men

JUDICIAL CIRCUITS 197

does not exist than lives in Aberdeen ; when we go there we are
treated courteously and kindly; to be sure, we pay our own
bills ; it is not forced upon us to have our bills paid ; we pay our
own bills ; if in any other county the bills have taken a different
course they never ask for them. We have no representative
upon that Committee; but let me stop right here and say, and
say conscientiously, that not a man from the whole section would
have found one word of fault with the President of this Conven-
tion because we are not there represented ; he supposed as we sup-
posed, it mattered not where the Committee came from, they
would be honorable, they would do justice by us, and every
part of South Dakota ; we did not care who Was on the Committee ;
the Chairman will bear me out in saying that we did not embarass
him to get upon the Committee, not by "any means. But when the
Committe was formed we asked justice at their hands, but as we
have shown you, we will have to leave it to this Convention to say
shall we have it. Gentlemen, it lies with you to say whether
this outrage shall be committed. Won't you think of this, gentle-
men ; let me ask you to act as you would have us act.

Mr. Davies: I am from the county adjoining Wai worth
County ; just twenty miles this side of the county seat of Walworth
County, where the judicial business of that county will be done.
In the first place we do not assume in all human probabilty that
all judicial business in that judicial district will be done in Pierre.
Perhaps a few years ago, when we had one term of court eve v
four or five years, it was necessary to go to Pierre up and down
that river. We expect that some of this business will be done on
the lines of railroad running right through the heart of this Judicial
District. If you are not well versed in the geography and prospects
of that section, let me say you will find three roads running in to
the very center of those counties, and near to the river; and one
running to Eureka, in McPherson County; so there are four rail-
roads. And as is well known, others are looking that way; and
at no distant day will be extended north and south, east of the
river, through this proposed Judicial Circuit. Moreover, I have
consulted with gentlemen of this Convention, from Campbell, from
Walworth, from McPherson, and Faulk Counties and we find hen-.
men from Walworth, Campbell, Potter and McPherson Counties
who want to go right down the river. Compare the north half
with the south half of the proposed district and is it for a moment

198 SOUTH DAKOTA DEBATES 1889

contended but that the direction of this Judicial business will be
down south on the middle line of this District? Then we have
better facilities as we are ; then running across the whole north tier
of counties of the Territory and make Aberdeen the cent'er. I
speak advisedly when I say that our people do not want to be
joined to the Empire counties east of us. We know that if that is
done the big fishes will swallow the little ones. We would be at
the mercy of the large populous cities, Mr. President, I think we
know positively that the opposition to this question is centered in
two or three or four of the larger cities, the centers of wealth, in-
fluence, culture and wisdom. There are seventy -five of us scattered
all over this Territory, each one of us representing communities
whose interests are dear to us. And while we wish God-speed
to every large city in this Territory including Sioux Falls, we don't
want to surrender ourselves body and soul. What little minds
we have, they are our own minds and. we propose to stand right
up for our rights and to say that it is right for us to have a square,
compact judicial district composed of counties which are equal
in wealth, influence and power and in cities. We want this show.
We want simply what is right ; what is just ; what is honest between
man and man; what is suitable to the judicial business for which
we are now preparing. I am not one of that Committee, but I
do not think that this Convention will for a moment question the
wisdom, ability and honesty of that Committee. I have had the
honor to attend one or two of their meetings and everything seemed
to be fair and above board as anything could be. I believe there
has been such work done by this Committee and so much of it,
that any work we could do in this Convention by going at this
business, everyone for himself, would not prove anywhere as near
. satisfactory to ourselves or to the people at large. I do not believe
it would be possible for this Convention to prepare anything that
would compare with this report. I am certainly in favor of adopt-
ing the report of the Committee, not the substitute.

Mr. Dickinson: I think we should all bear in mind as sug-
gested by Mr. Couchman from Walworth County that we are here
as a Constitutional body and that we should seek to do fairly and
justly by all portions of the Territory, and certainly to give all
persons a chance to be heard upon these questions as those upon
which there are interested. I think we should bear this in mind
also, Mr. President, that it is not merely a bare majority that we

JUDICIAL CIRCUITS 199

should seek to get so that we could barely carry through the meas-''
ures we are defending, but it should be unanimous, as near as pos-
sible. I wish every measure might be passed unanimously. In
the Judiciary Committee there was a majority in favor of the re-
port sent in. Quite a strong minority favored something like the-
apportionment of the Judicial District in the north part of the
Territory and east of the river as outlined in the one suggested here
today. I wish to suggest this; that in the apportionment of these
three districts, while there may be a number of the counties who are
satisfied, there are at least eight counties out of the twenty-three rep-
resented in that section that are thoroughly and completely dis-
satisfied; led to feel that they have been unfairly dealt with,
though perhaps not intentionally. I would not be so rash as to
accuse that Committee of designedly doing injustice. I think it
may be possible, Mr. President, that in a desire to do .well by the
constituency represented by the gentlemen, they may have over-
looked the interests of the constituency represented by us. Their
own interests appear so large, ours appear proportionately small.
It would be a serious mistake if this Convention should make
any apportionment in that section of the State, which would leave
eight counties so thoroughly dissatisfied. It would leave for in-
stance, in the district comprising the Counties of Beadle, Spink, '
Brown and Marshall, which are very important counties, dis-
satisfied and displeased with the arrangement. When a question
is raised in that district, it seems to me that it would not be very
pleasant for Spink County for that one county to be placed in, —
for the representatives of that county to be placed in and associated
in that Judicial District. Those three counties could very con-
sistently blame me for having brought them in that situation. That
the three counties should be tied against their will ; against their
interests; against their convenience, and against tlu-ir protests here.
It seems to me that there can be certainly a more just, fair and
reasonable arrangement than that. In the other districts repre-
sented by counties towards the east line of the State, the center
of which we may call the city of Watertown, there would be two
counties that would be thoroughly disstaisfied. One of tlu-m.
the County of Kingsbury, whose representatives are here and ran
speak for themselves, and present petitions and letters from their
constituents showing what they want, -with ivtViviHT to the main
question, I will say when I came here I had no particular rare

200 SOUTH DAKOTA DEBATES 1889

which way we were assigned, as I am not a lawyer, and — and I
never had occasion to go to law. I never wish to do any other
kind of courting than that which I did when I won my wife. It
is my business, however, to .represent my constituents here. I
have received a petition signed by every member of the bar, and by
the leading business men of our county, saying they wish to go into
the district in which they are now under the present Territor-
ial conditions; that is the counties on the north line, Day , Marshall,
Brown, Edmunds, McPherson, Campbell and Walworth. There was
perfect unanimity in these seven counties that that portion of the
State be not disturbed. The day before I came here I wrote up
to Judge Crofoot and he said: "We can do no better than endeavor
to secure the present arrangement of this Judicial Circuit." Judge
Crofoot has no interest in making any such statement as that as
he will probably not remain Judge long. It would be for the con-
venience of those doing business in that district, — the convenience
of the district to remain as arranged at present, and as desired
by the report of the Minority Committee. The Judge said: "I
can leave Aberdeen every morning and reach any part of the dis-
trict." ' Suppose he had to do business from Watertown, he must
go forty-five miles across the country by stage one way, — or he
must go around by Elrod or around by Aberdeen arid Redfield, —
a rather expensive and thoroughly inconvenient way of doing busi-
ness. Whereas, in the arrangement proposed by the substitute,
we have free access to all parts of the district. I do not think
anyone can blame us for desiring very much that arrangement.
I Wish to call the attention of the Convention to the argument
I heard before the Judiciary Committee. I think I have heard
nearly all the arguments in favor of the arrangement recommended,
by the Judiciary Committee. There has been nothing said of the
inconvenience of counties. There is an element from outside the
community interested, or political aims and ambitions who desire
to be cut off from certain counties in order to have a better political
field, but there is no political consideration whatever so far as I
am aware of, that dictated the arrangement suggested in this
substitute motion. We did not take into consideration the fact
that anyone has a desire to be county judge, or because any par-
ticular city or county desires to be the center. Our's is a convenient
arrangement to those interested, to the tax-payers, and I wish every-
one here to bear in mind in the studying of their maps, the propo-

JUDICIAL CIRCUITS 201

sition of the substitute does not place any of the counties in any
disadvantageous position. It leaves them all arranged so that they
have as easy and ready access by railroad as they have at the
present time. If it is not upon the ground of convenience that it
is urged by them, on what ground is it? If it is political ground,
is it the issue that the Convention has got to get out of the way?
And that, too, to the serious disadvantage of eight counties in that
portion of the State in order to further the political ambitions of
certain localities. I dislike very much, Mr. President, to refer to
such things as this, but they are manifest in so many directions
in the figuring that appears in these plans that it seems absolutely
necessary in order that we make no failure in presenting the Con-
stitution before these counties for adoption. I wish to say further
in reference to the main question, after I had presented the op-
position that a number of the best men had gone to the members
of the Judiciary Committee. I have the assurance that they were
satisfied, that they wanted the arrangement proposed to the west,
that is Brown County, but they would not press the claim to our
county and trusting in the pledge of the members of the Judiciary
Committee that that would be the report, we paid no further at-
tention to it until we found that it was too late to do anything to-
wards affecting a change. That the arrangement had been made
without my knowledge and without any deference to the wishes
of the Representatives from Day County. After that there was
nothing left to do but to present our desires before the Convention
which we have done in these words.

Mr. Van Buskirk: This is the first office I think I have ever
held in this Territory and perhaps the only one I shall hold in the
State of South Dakota; therefore, I desire to submit to this Con-
vention some of the considerations which moved the Committee
in making this report. And before proceeding to that I desire
to allude to two ideas or suggestions that were made prominent by
two of our brethren of the Convention. It has been said by my
brother, Couchman, that this Committee had got together and un-
der a pledge had sworn (I think was the word) to hold to a par-
ticular line of action, with reference to this apportionment. If such
a thing existed, it certainly did not come to my knowledge. I do
not think any such thing ever did exist, and so far as its being a
political question as suggested by Brother Dickinson, certainly
I think as one of the members of the Convention, being as I am

202 SOUTH DAKOTA DEBATES 1889

numbered with the majority with no more hope of being elected
judge in our district than one of the other members of the minority '
becoming President of the United States within the next five years,
and there is no possibility of that; therefore, I think, so far as I
am concerned, the members of the Convention can say at least, I
have not been influenced by any political consideration. I believe
there is in all three Democratic attorneys in that district which is
proposed here. I am one of them and the others are young men,
neither of whom aspire to that position. So I think, Mr. President,
they will say at least, I have not been influenced by any such con-
siderations in supporting this report. I have no means of judging
of the future only by the past, and judging of the future by the past,
I see no way for the proper administration of justice only to divide
these districts of this Territory up into circuits as we have. It
will become necessary to fully understand some of the reasons for
this report, to go back a little to the history of the jurisprudence
of this Territory. Originally we had three judicial districts. I
did not come into the Territory until 1883, afterthat we had four
judicial districts, and that stretched from the Missouri river to the
north limit of the proposed State of South Dakota. The judges
in these several districts had little penchant for business generally,
because they were appointed to stay there as long as the President
would let them. We had to hunt them ; they did not come into our
counties very many times to hold court. Well, in the process of
time we got another district in the Fifth District, in which I have
alwasy practiced. And that stretches from the Minnesota State
line to the Missouri river,— over two hundred miles long and one
hundred and fifty miles broad , 120 at least, all in one district.
During that time the judges of the court who had to sit in that
district, notwithstanding the people of the Territory voted them
$1500 per year for expenses so they might hold their court throughout
the various counties, sat down in the city of Huron and we have
never seen them but once or twice since the Fifth District has been
organized, at least in our county. Some counties near Huron had
terms of five and six weeks at a time. We have not had five weeks of
court in Codington County since I have been there, and I have lived
there six years. Now, when we come to consider the condition of
things it is no wonder that this people desire 'that we should have a
Constitution framed here so that they could become organized as a
state. 4 well remember, 'twas about the time I first came here

JUDICIAL CIRCUITS 203

early in the history of my residence in this Territory, someone
remarked: "A poor man cannot get justice without buying it";
and many times I know people do have to buy it. I know in my
practice I had a client and all the property that she had in the
world was siezed in a chattle mortgage, and she had a good defense.
What was the result? I had to go to the county seat of Brown
County, or I may say it is now the county seat of Brown County.
I got the case transferred to another court for trial. Judge Smith
was upon the bench, — I got my order. The mortgagee moved to
set aside this order on motion. Mortgagee was a man of wealth,
and my client had not a dollar in the world. He served me with
a motion to go down to the city of Pierre and we argued there that
motion to set aside the order to give him an opportunity to set up
a defense. I had to let this poor man lose everything he had, with
which to earn his living or put my hand in my own pocket and buy
railroad tickets and pay for hotel bills ; I did it ; I do not regret it
today, — I do not expect pay; this is mentioned merely as an il-
lustration of the condition of things which, Gentlemen of this
Convention, moved the framers of the Constitution of 1885 to in-
corporate in the Constitution as adopted a clause that the judicial
districts shall be composed of compact territory. And your Com-
mittee acted upon that instruction and we arranged the Districts
and the connection with a view to an apportionment in such a way
that the people might reach the courts and the courts might be
near the people. Well, what further? It came to my knowledge
before I came here that a combination had been formed to stretch
out the districts from the State line of Minnesota to the Missouri
river on the north, including the Counties of Grant, Roberts, Day,
Marshall, Brown, Faulk, Edmunds, McPherson, Campbell, Walworth
and Potter. On the other hand, down somewhere near the south
line of this State, not a great ways from the sixth standard parallel,
they got together and proposed to stretch out another district
two hundred miles long, from the Minnesota State line towards the
Missouri river, for some reason satisfactory to themselves. They
proposed to let the Territory lying between these two lines take
care of itself in the best way and manner that it could. I undertake
to say that when they undertook to form a combination stretching
out the district in that manner, it was a plain violation of the Con-
stitution under which we are acting and adopted by the people
on May last for our guidance and control. Well, the question arose,

204 SOUTH DAKOTA DEBATES 1889

what was to be done? A few attorneys, familiar with the legal
business of the whole country, when appointed on this Committee,
went to work to see how this matter could be divided up the best
to accomodate the people and business of this State. It has been
said here that it is easy to get from Day county over to Aberdeen.
Now, as I said, I had supposed that the purpose and policy of this
arrangement of the districts contemplated by the Constitution
and which had been agreed upon by the Committee was to strike
at the root of this idea that the people of alarge section had to go
for judicial purposes to Aberdeen or Huron. I supposed that that
was the purpose of it. That the object in forming the district this
way as my purpose was to fix it so every locality might rest upon
its own merits and divide these districts so that we would not be
compelled to go to some particular locality. My friend Dickinson
from Day County, says it is much easier to go to Aberdeen than
come to Watertown and perhaps some other locality. Let us look
at it a minute. I do not understand that the county seat of Brown
County is in Aberdeen. It is true that temporarily they pre-
vented the moving of the records, as I understand the Supreme
Court of the United States has decided that the county seat has
never been properly removed from Columbia. Now, if the gentle-
man wishes to go from his county to Columbia in the morning he
can get an early start and can go until four o'clock the next day
to get to Columbia. He will have to be gone two days in spite of
all he can do and if he does any business, — perhaps three, at a
distance of seventy miles. Now again, I don't know any reason
that this Convention should assume that the court is going to get
down in a particular locality and make everybody go there, in the
future as in the past. Suppose an attorney wants an injunction.
The Judge should be holding court over in Campbell county on the
Missouri river. How long would it take him to go over there to
get his injunction and back again? About a week at the best he
could do. Suppose the gentleman from Campbell county should
conclude his interests were in danger and he wanted an injunction
and the Judge happened to be holding court in Marshall county,
how long would it take him to go up there? Probably about three
days o go up there and back again. Now then, suppose this dis-
trict shall remain with Day county in it as proposed by this Com-
mittee.' He can leave his place of residence in the morning, an
if court is sitting at Milbank, in Grant county, he can get up the

JUDICIAL CIRCUITS 205

and have half a day to attend to business and get home the same
day. If the court is sitting in Clark county, he can leave home
in the morning and get down to Clark before noon and have some
time to transact business between trains, and get back the same
day. It is only about forty miles ; he could get to Watertown about
half past two o'clock in the afternoon, transact business and get
back home the next day ; and in either place he would not have any
more miles of railroad to cover than to Aberdeen. I am bound to
do the people of the county a kindness whether they appreciate
it or not and vote this amendment down, because they will then
have three places they can attend court as conveniently as they can
at the county seat of Brown county. Now, what interest Marshall
county can have, I do not know. They are there where they can
get blockaded in the winter season ; that is conceded. I am told
that the purpose of this was to place the people in the various
districts that are organized so they could get some kind of service.
I have no way of judging of the future but by the past, and my past
experience in this Territory and the exeprience that I had before
coming to this Territory, for I have been practicing law about
twenty-five years constantly, is that these outlying counties will
always be neglected where farther removed from the larger
counties, that they do not get the same service. It has not
only been true here in this Territory, but the matter of obser-
vation with me in my practice before coming here, and we have no
other means of getting at it only to say that in the future it will
be as in the past. Therefore, let us put these counties together,
let us put these rich counties lying west and up and down the James
in a situation where they can elect their own judge. Then they
will have no large counties to control the smaller ones and they
will get equal service all through the district. I know of no other
way to get at it. These are some of the considerations that have
moved the Committee to make this report that has been made here.
The attorneys upon this Committee have understood what the
situation has been heretofore, and therefore we thought it was
right to place these counties that have had no service at all in a
situation where they would have a judge themselves and could get
the service they have a right to demand, and which they would
expect now. Something has been said about the convenience of
letting from Kingsbury County to Huron. If the court should
happen to be sitting in the district over at Pierre they would not

206 SOUTH DAKOTA DEBATES 1889

find it so convenient. It is only about thirty miles over to Brookings ,
about thirty miles from Clark, and about the same distance from
Watertown. So they will have three counties very near by and
if the Judge should happen to be over at Pierre, it would not be
convenient for them at all. I apprehend that when this Constitu-
tion shall go into effect, and our Legislature shall have fixed the
time of holding terms of court, I apprehend they will have two
terms of court in each of these counties and perhaps a law term.
I do not know any particular reason why the gentlemen have got
to go out of their own county to attend to their business. I have
practiced law for a period of twenty years in the First Judicial
District of Wisconsin, with a very large practice. During all that
time I never had to go out of my county but twice to argue a
motion. I apprehend that when these gentlemen come to get
their courts organized so that the judges are responsible to the
people, they will never have to go out of their counties to argue
their motions. It is merely a fancy based upon the iniquitious
system existing in this Territory at the present time. Again,
under this Constitution the Legislature may confer the power of
Judge of Chambers upon the County Courts. That was done in
Wisconsin. There was but one solitary order that the Judge could
not grant, — he could not grant a new trial. There was not another
motion that the judge had not the power to hear and determine.
It was not necessary to go out of the county to argue a motion;
and that would be the result here. You woxild not have to go out
of your county to argue your motion. It is entirely a mistaken
idea that the people of one county are going to be compelled to
go to other judicial districts as heretofore. For instance, a gentle-
man may want an extension of ten or fifteen days to file a complaint
in the case. All he has to do is to step over to the office of the
county court and get his order. If he wants to make a complaint
more definite and certain he can go before the county court and
ask for an order, so if he wants an injunction the Legislature may
confer the power here as there, under a similiar Constitution for
him to grant injunctions. What would you go away from home
for under these conditions? It is just simply a fancy based upon
the iniquitious condition of things that is existing in this Territory,
and which will not exist any longer than the moment you get a
judge that is dependent upon the will of the people for his position.
Mr. Matson: I am not given to speech making yet I ask the

JUD CIAL CIRCUITS 207

indulgence of the body for a few minutes. If I were anxious for
newspaper notoriety and capable of it, there is doubtless material
for a first rate speech. If I felt disposed to give full vent to the
feeling of indignation with reference to certain matters in this con-
nection, I think now is my opportunity, but I have no disposition
to make a speech. I certainly am not disposed to question the
purpose of any member of the Judiciary Committee because I
know of one instance they were imposed upon. I feel that if I
had been a member of that Committee I would resent it. I am not
disposed either to speak here against the expressed wishes of people
in Dakota — people whom I do not represent. I simply want to
make a statement with reference to the feelings of the people I
do represent in order that their wishes may be known, — I will
allow them to speak for themselves. During the first week of the
Convention, in order that I might act intelligently in reference
to this matter, I wrote to a gentleman in Kingsbury county asking
him to ascertain the wishes of the attorneys in reference to the
judicial districts. I received for a reply something like this, in
substance: "I have seen some of them but they do not seem to
care how the matter goes. Have nothing to suggest." With that
reply I rested perfectly easy until the Committee had got well under
way, and I saw that the members from the different portions of the
State were considerably exercised over their actions. I thought
it very strange that our people were so unconcerned so I went to
the Chairman of the Committee and asked if a ccmmunication had
been received from Kingsbury County. " He said, "Why, yes, there
is a petition." I thought it was a little strange. So I went to the
gentleman who had the petition and asked if I might see it. He
let me have it and I read a petition signed by two gentlemen who
claimed to be the Chairman and Secretary of a meeting. The
County Treasurer of our county was upon the grounds at the time
and he said, "That thing is a fraud", and "Such a meeting never
was held." That was stated, in substance, before the Judiciary
Committee. I received a telegram which I will read: "Watson and
Schenain were the only persons at pretended meeting of Bar which
asked that Kingsbury be attached to Codington. Every other
person seen asks to go with Beadle.

JOHN A. OWEN,

J. C. GIBSON, Abstractor,

THOS. H. RUTH, Mayor."

208 SOUTH DAKOTA DEBATES 1889

In addition to that they sent a petition of remonstrance which
I will read:

To THE MEMBERS OF THE Sioux FALLS CONSTITUTIONAL CON-
VENTION:

The undersigned attorneys and business men of Kingsbury
County would respectfully represent that they are opposed to, and
earnestly protest against being included in the Third Judicial Dis-
trict for the reason that the railroad facilities of said Circuit, so far
as they affect Kingsbury County, are so limited that it would put
the people of said county to great inconvenience and expense to
reach other counties in said Circuit. And we further represent
that we are in favor of a circuit composed of the counties of Kings-
bury, Beadle, Hand, Hyde, Hughes and Sully, or a similiar circuit.

B. A. DUNLAP, Merchant,

THOS. H. RUTH, Cash. Kings. Co. Bank,

D. H. LOFTUS, Merchant,
H. J HAMILTON, Merchant,
W. E. BROADBENT, Merchant,
S. B. OWEN, J. P.

WILL H. RUTH, Asst. Cash King. Co. B.
J. C. GIBSON, Abstractor,
R. N. BUNN, Dep. Co. Treas.,
GEO. C. DURKEE, County Auditor,
A. C. HANSON, Register of Deeds,
V. F. DAVIS, Dep. Register of Deeds,
PHILIP LAWRENCE, Probate Judge,
A. W. MULLEN, Postmaster,

E. S. Johnson, Atty.,
A. THOMAS, Atty.

C L. DEWEY Clerk Dist Court Kings-
bury County,

t A. N. WATERS, Attorney,

G. C. BRADLEY, Druggist,

F. R. JEWELL, Merchant,
D. R. WILLISON, Jeweler,
GEO. B. WILMARTH, Merchant,
D. W. WILMARTH, Merchant,
HOPP & MCDONALD, Publishers,

C. H. TIHKHAM, Merchant,

C. P. INGALLS, Deputy Sheriff.
R. S. GLEASON, Co. Supt.,
P. W. MC.KELLER, Physician,
W. L. SEELYE, Insurance,

J. CARL S , Abstractor.

It was signed by thirty-one of our people, representing bank-
ing intsitutions, merchants and people in the vicinity of the city.

JUDICIAL CIRCUITS 209

We have simply let these documents speak for themselves; we only
speak with reference to Kingsbury County. I may not be able
to speak intelligently on this question, for the reason that I never
practiced law, not even as a client. So far as I am personally
concerned, it is absolutely immaterial to.me as to how these districts
are formed. I do feel in duty bound to represent my people in
this matter, — they have put these papers in my hands to be used
here, publicly in the Convention. I think in justice, I ought to
say further, there are no lawyers in our town in Kingsbury county,
the only lawyer who does business in our village resides in Beadle
County, just over the line. Our town is in both counties. This
lawyer in Beadle County wrote me, but I have given it no consider-
ation for the reason that he is on the Beadle County side of the
line and not in the district that I represent. I also have a letter
from a gentleman of Iroquois who requested that we do not "shoe-
string" these districts, on the basis to have them as compact as
possible, of course, his idea was, — to make the matter of expense
and time as convenient as possible for the people He left it to
me that they cannot go to Watertown if they had any occasion
to go to the legal center and transact business, short of three days.
While they can go to Huron and return in one day, and- have the
whole day to transact business.

Mr. Da vies: I do not want to take more than my portion
of the time in this matter. I forgot something in the early part
of the discussion. I have with me documents from members of
the Bar of the northwest counties, interested in this matter which,
if necessity compels me, I will bring forward before the Convention.
I do not think they will be at all necessary. I will, however,
intimate, they are private communications, but if they become
needful I will read them. They are from attorneys, — I am an
attorney myself practicing in that district — from ex-Judges
anil ex-District Attorneys, and from Clerk.s of Court. I have them
with me in my pocket if they are wanted. I do not think it will
be necessary to produce these documents to sho\v fully the desires
of the- people in that particular district. With reference to the
convenience of going to Aberdeen, it is not convenient to have to
practice law before the Judge at Aberdeen. Judge Crofoot, who
is a very able and competent judge, comes to Ipswich to bold court.
and goes home to sleep nights. If we had our own district and our
own judge, who would be on the ground at all times there are

210 SOUTH DAKOTA DEBATES, 1889.

times when a matter of threeminutes or five minutes will enab'e a
man to go home Saturday night with eight or ten witnesses instead of
staying at the county seat at great expense. It is not convenient
for any other counties but Brown County to come to Aberdeen to
do judicial business with the judge residing out of that district
and going home to sleep nights, no matter who he is, or how good
a judge he is, it is a matter of great inconvenience to all the resi-
dents of that district.

Mr. Sherwood: I do not desire to make a speech, but I do
desire to call attention to two or three matters in relation to the
judicial districts as they are now, or rather as they were, in con-
nection with some things that have been said by those who oppose
the report of the majority of the Committee. I will say, that as
a member of the Judiciary Committee, I believe it was the honest
effort on the part of every member of that Committee, to consider
only the interests and welfare of the people interested in the sub-
division of this Territory into judicial districts. If there was any
effort upon the part of any man to fix a district for any judge
or any individual, I am not aware of that effort. If there was any
compact or anyone sworn to it, I am not aware of that fact. But,
as my friend Van-Buskirk, who comes from the Codington County
Bar and is in the same judicial circuit as myself, has said, before
we left our homes, we understood that a meeting had been held
in Aberdeen at which an agreement was made to change our
three or four judicial c'rcuits into three circuits, with one center at
Aberdeen, and one center at Brookings, and one center somewhere
else. Now, as far as Mr. Matson is concerned, I desire to state one
thing, that he has stated the matter as I understand it; there is
no question about it at the present time. But, one more thing, —
when the Committee acted upon the matter they had before them
a petition, a copy of which I have in my possession, which was in
substance as follows: At a meeting of the Kingsbury County Bar,
held at the office of James F. Watson, Mr. Watson was elected
Chairman on motion, and the following resolution was adopted:
RESOLVED: That it is the sense of the Bar of Kingsbury County
that no change be made in the Judicial Circuit as fixed in 1885. I
also have in my possession a letter to which the gentleman has
referred ; as he has stated to you when the Committee acted upon
this matter,— the Judiciary Committee,— they had before them
this letter from a banker of Iroquois and this petition ; that was at

JUDICIAL CIRCUITS 211

that time before them from Kingsbury County , with the exception of
the incorporated statement of the County Treasurer of Kingsbury
County, who appeared before the Committee, and said it was not
the wish of the people of Kingsbury County. So much then, for
that. I think I stated it accurately concerning the two parties
who represented that Kingsbury County wishes that the Judicial
Circuit chould remain as it was under the Constitution of 1885.
It has been stated that Judge Crofoot says, that the district could
not be bettered as it now stands; I desire to say this, that all that
country, Roberts, Day, Marshall, and west, Potter, and that Grant
and Roberts Counties have sent down petitions which I hold in
my hands (a letter from Grant County) signed by every member
of their Bar, requesting that they be left in the third district as
arranged. It is said by my friend from Day County that should
the twenty-three counties comprised in the three or four Judicial
Circuits be divided as suggested by the majority of this Committee,
that there will be eight counties wholly or diametrically opposed
to that apportionment. I say that should the district be ap-
portioned as provided by the substitute there would be fourteen
counties diametrically opposed to such apportionment.

Voices: Name them!

Mr. Sherwood: You name yours and I will name mine. It
i a question now of whether you will displease the majority or
the minority. As I understand it, it becomes our duty to divide
these two Territories into circuits as near compact in form as pos-
sible. Now, what have they done? They have formed a triangle
with four counties at the base and one county at the point of it.
What is the object of that? What is the particular
reason? Why, of course, no political reason, — not at all. Still
I am by taking Aberdeen as the center", that if the
two counties on the east should vote with Aberdeen, under the
apportionment of delegates made at the last Convention, — if the
two counties on the east of Aberdeen vote with Brown County,
there is a majority of votes in that Circuit ; if with the west, there is
a majority of votes in that section. In other words, throwing in-
fluence or weight at the center, or Brown County, on either side
will carry it in any way they choose. Of course, that is not political .
I also observed that in every motion that came before the Judiciary
Committee, for the other circuit, that the vote of Beadle County

212 SOUTH DAKOTA DEBATES 1889

with the vote of the counties to be, resulted just as they proposed
in general. I think that is the case now.

Now, if there is anything political in any of these moves, I
see how that circuit whereby one county standing in the center can
control the circuit by combining with either end. I do not say that
there is any political design for that purpose. I say further that
when we first commenced arguing this question, the only argument
offered before this Committee was to make the circuit as nearly
accessible as possible by means of lines of railroads. But when
the proposition was made to put Brown, Spink, Beadle and Miner
Counties together, — and it was where two lines of railroads ex-
tended into that circuit, then they said: "We do not wrant that
under any circumstances," whatever. If we are to act as we have
not acted heretofore, so that they arrange states for the convenience
of the cities, instead of the convenience of the people, then the re-
port of the minority should be adopted. If we are to arrange for
the people instead of the city of Aberdeen and the city of Huron,
then the report of the majority should be adopted.

The President: Is the Convention ready for the question?

Mr. Davies: I ask that the report be read.

Mr. Dickinson: I desire to correct one misapprehension that
these gentlemen are laboring under, that is with reference to the
Aberdeen meeting and the combination formed there. This is the
first I have heard of that suggestion.

Before we came down here, the delegates coming down here
that would have to go through Aberdeen to come here, I presume,
received a card as I did, signed by the delegates from Brown
county, asking us to meet at the parlors of the Sherman House
the night before we came down. Accordingly I was there and
went into a ro<3m and was introduced and we shook hands all
round and arranged as to what train we should take to come down
here and then adjourned, without date. That is all the combi-
nation I know anything about. In reference to the judicial mat-
ters nothing thought of particularly at that time that I was informed
of at least. So far as my knowledge goes, Aberdeen has not "poked
her nose" as is sometimes said, into this business at all. Nobody
has said anything except the delegates who had their duty to per-
form in this matter, no attempt to control in the interests of Aber-
deen or Brown County. There are a good many other things,
it seems to me ought to be said. I want to allude. to just one thing

JUDICIAL CIRCUITS 213

more, — that is the assertion made that fourteen counties would be
opposed to the arrangement if the substitute was carried. There
might be three counties that would be in some measure incon-
venienced, but none of them, I think, but what would be more con-
veniently situated that the balance of the counties would under any
other arrangement. The counties I think, as conveniently ar-
ranged as they could possibly be arranged, — as the plan proposes.
It seems to me the convenience of the entire State should be kept
in mind. The spirit of the arrangement was that it should be made
convenient of access from all parts of the counties and district.

Mr. Hole: Mr. Chairman and Gentlemen of the Convention:
When we were elected and sent to Sioux Falls as delegates, our duties
then were to represent our constituents in our individua1 districts.
When we were appointed on Committees in that Sioux Falls Con-
vention, our duties then were to serve the Convention and to forget
that we were representing merely one county, or one particular
place. That was the position to be .taken upon these Committees.
I will say that in the main, that has been respected, — I will say
that the Committees have arranged these districts to the satisfac-
tion of everyone of the delegates from those districts every single
one of them ,— e very one of them were consulted and we were
acting the part of repre:entatives of a dignified body.

But taking this map, we have a member of this Committee
there, one there, and one there (indicating) and as you see, there
is no power that can reconcile their claims.

This member gives his district and this member gives his,
(indicating on map). It was probably unfortunate, — uninten-
tionally so, bu unfortunate that they happened to be placed right
along together. They could hardly do otherwise than look out
for self-interests ; it was natural remembering that they came here
representing individual constituents forgetting that when appointed
upon committees they ceased to represent their constituents alone
but fairly and honorably to represent all of Dakota. That much
for that one point; I think that is the keynote. It'all hinges with
the north half of South Dakota. The whole disturbing trouble
comes out of the desire to fix this in the Committee, — at least it
ooks that way to me. The purposes of these Judicial Districts
is to satisfy and accomodate the people in their law business, in
their legal difficulties ; that is the purpose of it ; let them be equitably
and fairlv divided.

214 SOUTH DAKOTA DEBATES 1889

When we came here it was talked all around by almost every
lawyer in the Convention that we had not districts enough; that
there were not sufficient districts; but as soon as these districts
were formed I find that that was forgotten. In the east we divided
it in this way, (indicating on map) leaving that one district more
business, as I am informed by members who are acquainted with
th facts, — more business in that one district than both the others;
more than any other one district.

The political feature as referred to by my friend from Clark is
an amusing one; of course there was no politics in what they have
outlined, going on, he shows that Aberdeen makes a center, and
Huron makes a center. I presume as soon as he studied Long's
Legislative Hand Book he maybe satisfied he knows that Kingsbury
and Beadle Counties have at least a majority. ; I j* fe |i

Mr. Sherwood: I said Miner and Kingsbury.

Mr. Hole: That question is not before the Convention; Miner
has never been mentioned, never been thought of in this connection,
because Miner objected and would not come" in and plainly said
we are satisfied. That much for the politics of the whole arrange-
ment. Yet, gentlemen, you will bear me out today that I am not
as much of a politician as my friend from Clark (Mr. Sherwood)
and I ask that you look this all over before you take what has been
stated for facts.

Another thing; you say that these districts must be in compact
form ; it took a great while to pound into me the idea that a district
one hundred and thirty miles long and thirty-six miles wide was
compact; I can't see that it is compact; the idea of putting a dis-
rict in that shape! As it now stands, so far as convenience is
concerned, I will state this, and I do no fear contradiction or dis-
pute, that in this district as arranged, making these seven counties
as on ? district makes a district that when you come to go from
one place to another that cannot be made up in matters of con-
venience any more desirable, by any other manipulation of these
counties. Distance in miles does not figure it; it is time taken to
get from one court to another. That is the fair equitable consider-
ation; not the consideration perhaps that a railroad runs the entire
length of the district and through every county in the district.
From our county you can reach every point in the district, every
day. In Brown County you have the same result,— in the county
of Codington, Hamlin, Deuel, Brookings you have the same result.

JUDICIAL CIRCUITS 215

And so far as stating the ground is concerned, I will defy contra-
diction of this statement, that outside of political and little personal
matters, to have the report carried through, the Counties of Cod-
ington, Hamlin, Clark, Brookings and Deuel, Grant, never have
complained of this District. Spink has some reason to remonstrate
and they can sympathize with us. Potter, Faulk, Sully, Hyde and
Hughes Counties, never have objected because they are compact
in form. The people of Kingsbury County may, but they do not
here today. I may state to you that Beadle County will be satis-
fied as it is best that it seems possible to get ; I will say further that
Hand County is satisfied and wants that arrangement. I will also
say that Hyde County is satisfied and wants that, and so far as
Hughes County is concerned it has not been heard from. Faulk
County has no reasons for dissatisfaction because they can reach
every other point conveniently so far as judicial services are con-
cerned. The purposes and duties of this Convention is not to
make up a circuit for any particular person or any particular
clique, but to make up a circuit that would serve the common
people and give them what they demand. Give them an ex-
peditious and convenient district in which to do business. The
railroad facilities in making up these districts have been studied
in T articular, and it was not made up on the spur of the moment, —
it has been worked over. That was kept in mind from the first.
I do not believe that this Convention, while it has got the power
to do it, will do anything other than what the original motion con-
templates. Now you havj. four counties that have more business
than all the north districts in which there is not one single man
satisfied, — not one single delegate, if I may use their words, not
one single delegate satisfied. I have talked with the members
from Spink County, Chairman of the Committee,! have also talked
with the other men, and they all say it does not suit the'm at all.
Now I am confident that this Convention will not allow it to per-
petrate this huge mistake and force this district upon the people,
in which there is not one assenting voice. I know you will not do
it. You are here this afternoon in the capicitv of a jury, — you
are listening to what is said upon either side, then make up your
minds and do what is right, what is fair, and that is all that is asked
at your hands. We do not wish any prejudice, any petty jealousy,
any of the little feelings that we may have engendered bv con-
tending over this thing or when we get excited sometimes we do, —

216 SOUTH DAKOTA DEBATES 1889

to enter into this consideration at all. These things ought, from
this moment, to be entirely forgotten; you are to act as jurors; you
are to do your duty as jurors. I am satisfied that you will do ex-
actly what is right in this matter.

Compactness of these districts is another matter I wish to
call your attention to just a moment. The idea of calling this
compactness. ^ There is not one element of compactness in a dis-
trict 130 miles long and 30 miles wide. I do not think that it is
necessary to be argued. I will say yet that the districts as made
will, I think, satisfy the people of the district.

Mr. Van Buskirk: I want to reiterate two things that the
gentleman just on the floor has made. He said there is more busi-
ness in that Jim River District than all of the others. I have had
occasion to visit the courts of every county except Roberts, lying
east of the west line of Beadle, Spink and Brown Counties. I am
familiar with the business. I know whereof I speak. I know
there is no business there in those districts that compares with the
Empire District to the west of that section.

Another thing, gentlemen of this Convention, there is some-
thing very serious about making a district one hundred and twrenty
miles long; I have counted up the townships; it is 120 miles long;
counting up the townships from the west line of Spink County to
the Minnesota state line, it is a little longer than the other one; it
is large enough to make a state over 120 miles long; talk about
compactness, and look at it!

Mr. Hall: With regard to the matter of the amendment I
think there are counties that should be consulted in regard to form-
ing that kind of .a district as well as other matters.

In Hand, Hyde, Hughes, Sully and Potter and Faulk Counties
they are not satisfied ; and I do. not think a single one of the dele-
gates are. They claim Hyde as being favorable; I wish to read
portions of a letter I received from an attorney at Highmore in
regard to ithis matter: "I favor a judicial district stretching east
taking in Kingsbury county ; it is not very nattering that they have
since signed a paper cancelling their former signatures, which paper
I will forward to you tomorrow. Our people here are united upon a
district lying in a body, and cut off the necessity of attorneys run-
ning to Huron for court business. We favor the report as made by
the majority of the Judiciary Committee and look to you to pro-
tect our interests in this direction."

JUDICIAL CIRCUITS • 217

It seems Beadle County or somewhere else 'has sent a man
down in the adjoining counties for the purpose of getting signatures.

I will read a portion of another letter: "For Heavens sake
don't let Huron own us any longer". Signed, W. A. Perkins.
(Laughter).

The letter shows, Mr. President, that the people of this dis-
trict are opposed to the arrangement as suggested.

Mr. Anderson: I presume it becomes necessary for me to
straighten myself out a little; I might get somewhat mixed up. I
came here under the impression that I was a representative from
the Eleventh District. Almost immediately after coming here
I was credited with being a Huron man ; the next thing I was charged
with being a Republican ; I can stand that tolerably well ; the next
thing I was taken for a Presbyterian preacher; and now, Mr.
Chairman, I am almost unable to tell after listening to the gentle-
man from Beadle, whether I represent Hand County or Beadle
County.

The gentleman has stated that all the counties pretty much
west of Beadle, were in favor of this substitute; that Hand County
was in favor of it, and Hyde County was in favor of it, and Sully
and possibly Potter; these gentlemen have spoken for themselves
they have said to the Convention they are not satisfied and do not
favor it. I think I can speak for the people of Hand County cer-
tainly as well as the gentleman from Beadle. I say unhesitat-
ingly that the people do not want any connection with Beadle
County; it would not suit the people of Hand County to be in-
cluded in the District as comprised in this substitute; I shall vote
for the report of the Committee on Judiciary ; I shall vote against
this substitute; we are satisfied with the district as reported by
the Committee and expect to vote for it; I think the Committee
has done a remarkably good job in putting up these districts, par-
ticularly the Fifth District. The District comprising the empire
counties of Brown, Spink and Beadle, including the metropolitan
cities of Aberdeen and Redfield and the Village of Huron. I think
this is exceedingly proper. I hope this Convention will come to the
aid of the rural sections of these districts and release us from the
grasp of these cities.

Mr. Cooper: I have been waiting to hear from Hand County
before touching up this question; I am glad I have at last heard
from it. About a week or ten days ago the gentleman who just

218 SOUTH DAKOTA DEBATES 1889

addressed the Convention came to me with a proposed circuit
which read as follows: Sully, Hughes, Hyde, Hand, Beadle and
Kingsbury, and perhaps Miner Counties. He told me last night
that he didn't know the people of Hand county stood on this ques-
tion except from what he had heard from that county since he
came here. I have heard from that county; I have it in black and
white, signed by every attorney living in the county of Hand; the
gentleman from Hand County included saying that they desire . to
be connected in that district consisting of Sully, Hughes, Hand, Hyde
Beadle, and Kingsbury, or a similiar circuit; signed by every at-
torney, I say in the county of Hand, with one exception, and the
reason that he gave for not signing it was this: That he was in
favor of the Circuit proposed in the substitute, — other attorneys
opposed the Circuit proposed by the majority of the Judiciary
Committee and that he was in favor of sending this petition- (which
they afterwards adopted) through the representatives from that
county, but the majority of the attorneys said that they desired
that the petition should be addressed to the Constitutional Con-
vention of the State of South Dakota; and for that reason he did
not sign the petition. The petition speaks for itself and' is sub-
stantially in the following language:
To THE MEMBERS OF THE Sioux FALLS CONVENTION:

We, the undersigned members of the Hand County Bar, respect
fully represent that we learn with surprise, the boundaries of the
Sixth Judicial Circuit and desire to enter our earnest protest against
the same ; that it will be injurious to the people of this county owing
to the lack of railroad facilities with which to reach the different
portions of the proposed circuit. And we further represent that
all person or persons who may state or have stated that the Bar and
people of Hand county are in favor of the proposed circuit do not
represent the sentiments of the people.

Right in this connection I would like to make an explanation;
Mr. Hole who came down here to represent his county, and he met
a proposition from the delegates living north of the Second Standard
of this kind ; that this District should be composed of the Counties
of Sully, Hughes, Hyde, Hand, Beadle, Kingsbury, Potter and
Faulk ; brought that proposition from one of the delegates from the
County of Hand who sits in this Convention now ; who said they
had counted up the votes which would be in the Judicial Convention
in that Circuit and that they wanted votes enough to defeat two
counties, Beadle and Kingsbury. We told them they could have

JUDICIAL CIRCUITS 219

them so far as we were concerned- we wanted to be connected only
with counties in which decent members of the bar practiced back
and forth. So far as the judgeship was concerned, if Hand County
had a man they wanted to present for judge, all right, or if Hughes or
Sully or any of them, that was all right. We say if we cannot get
those counties, we want a smaller circuit; if it is not necessary to
do it to take off a county, why let it be done. We do not know
what the Convention will do but this is practically what we want;
we want a circuit running along the Dakota Central railroad ; if it
is necessary to add to that circuit, the County of Potter and Faulk,
or if it is necessary on the other hand to add the County of Buffalo
or the County of Jerauld, very well. Now, I say this came from the
Bar of Hand County, themselves; it didn't come from the Bar of^
Beadle County, although I was there in Miller on that day; I had
nothing to do with this petition ; made no suggestions at all except
to say to them that the people living south of the Second Standard
were satisfied with their Circuit; that it wrould be impossible and
impolitic to take six counties in that circuit as the delegates had
agreed; and they asked me when I went to Miller on that day, (I
say I was there on private business ; nothing connected with the
Judicial Circuits) how it came that this Sixth Circuit had been
formed in the manner and shape that it was ; wanted to know why
it was that we left a tract east of them side by side with them ; why
I would permit anything of that kind without raising my voice ;
I told them what the situation was and they said with one voice
we will petition the Constitutional Convention at Sioux Falls that
justice may be done the people of this county.

I say there is not a lawyer in this county, not a man in that
county with possibly two exceptions that are in favor of the Sixth
Circuit as proposed in the majority report of the Judiciary Com-
mittee. I say that it is not the evidence I have presented to this
Convention as to the sentiment of the people of that county in
relation to this matter. On yesterday, those in the minority, pre-
presented to the Chairman of the Judieiary Committee, the fol-
lowing petition, substantially:

Sioux Falls, July 23, 1889.

We, your petitioners respectfully represent that we believe
there is much dissatisfaction with the judicial apportionment as
proposed by your Committee as to the districts made up of the fol-
lowing counties, to-wit: Campbell, Mel'lierson. Walworth, Ed-
munds, Sully, Hyde, Hughes, Hand, Beadle, Kingsbury, Faulk.

220 SOUTH DAKOTA DEBATES 1889

Potter, Brown, Miner and Day; and in order that full justice be
done, and full consideration be given that section, we, the dele-
gates within said territory, respectfully ask that the proposed
judicial apportionment report as to those counties only, be re-
considered. Signed by Dickenson.Couchman, Hole, Stoddard and
others.

Potter, Hughes, Hyde, Sully, Hand, Beadle and Kingsbury
have sent petitions and other papers in connection with the matter
and will be here tonight. C. G. Hartley, of Hand County, I have
been told — Hartley now votes for the substitute. I have it over
his own signature that the people of that county are opposed to it.
I understand that he has received no new light from Hand County
since yesterday. I have also some evidence from the County of
Hyde. There is D. A. W. Perkins. I presume that when these
gentlemen signed this petition they knew what counties composed
the Sixth Judicial Circuit ; I believe when they signed this petition
they knew where were located the Counties of Sully, Hughes, Hyde,
Hand, Beadle, and Kingsbury ; I believe they knew these things
and until there is some better evidence before this Convention, then
this letter from one single member of the Bar, — I say I believe it
would be injustice to the Hyde County Bar to say that they did
not know what they were asking for when they petitioned this
Convention as they did upon this piece of paper, substantially in
these words:

"We, as members of the Bar of Hyde County, represent to the
Constitutional Convention that the proposed judicial district to
which we are attached is very unsatisfactory, and will be very in-
convenient and expensive for us. We therefore respectfully ask
that our county be attached to Sully, Hughes, Hand, Beadle,
Kingsbury and Miner counties for judicial purposes."

I think the signatures to this document include all but two
attorneys who live in Hyde County, — Mr. Perkins and Mr. Price, who
is at present in Bismarck ; and so I say that the evidence from Hyde
County is to the effect that they desire to be placed in a judicial
circuit as provided by this substitute.

A good deal has been said in this Convention about center of
Huron and Aberdeen, but I think if you look at the majority
report you will find another center in Codington or Clark Counties.
I think if you count the votes as has been argued before this Con-
vention you will find that Codington, together with the counties

JUDICIAL QRCUITS 221

north, can outvote the counties south; or take the vote of Coding-
ton or Clark, with the vote of the other counties south and they
can out-vote the counties north. So that it is a law that cuts both
ways, if there is anything in it. But I say that I do not believe
nhis Convention at this time is going to build up judicial circuits
in a manner to favor any particular locality, in a manner to favor
any particular man for the honorable position (I say the most
honorable position a man ever is elected to in this world) that of
judge of our courts. I say I do not believe this Convention at this
time is going to cut up the Territory in such a manner as to entail
endless expense and endless inconvenience to the people for the
purpose of giving some man over in Edmunds county or some
other county the fancied advantage. I do not believe that this
Convention will do it.

LetNus look at these counties formed into circuits by this sub-
stitute. We will start with Day county. Day county speaks as
one voice, one man against the Third Judicial Circuit. They say
they have to travel forty-five miles by stage in order to reach the
center of the Judicial Circuit.

Another thing I would like to call the attention of the Conven-
tion to in this connection.

There must be something behind this, — there must be some-
thing rotten about this matter when all of these counties speak with
one voice saying they do not want to go into a judicial circuit
known as the "Codington Circuit". We hear from Marshall, and
what does Marshall say? Marshall says, "We desire to go into a
district with Brown County". Day says the same, MclMierson
the same, Campbell the same, Walworth says the same, Brown
says the same; Edmunds says they want a judge over there and
that they cannot vote down these other counties, — six counties.

If this proposed circuit, as proposed by the substitute, has a
perfect railroad connection with almost every other portion of
tlu- ( ircuit, — atid we are told time and again while this Committee
a1 work, that they were opposed to the circuit including the
counties of Beadle, Spink, Brown, and Marshall. \ow.what do
they want, and where do they want to go; what are their desires?
I say they told us they were opposed to this cin uit and I- I •

•ink-men upon the Committee; the Chairman I have always
found to be an honest man. 1 say I believe it. 1 find the men of
Marshall County are opposed to this circuit; Brown county is op-

222 SOUTH DAKOTA DEBATES 1889

posed to the circuit; Spink county is also opposed, and Beadle
county is opposed to this circuit. We find Hand county is opposed
to the circuit they are in; we find that Hyde county is opposed to
that circuit and McPherson county is alos opposed and Campbell
county is opposed to the Circuit, and also Walworth county. We
find Kingsbury county also opposed to the circuit they are in ; we
find Brookings, Deuel, Hamlin, Clark, Codington, Grant, Roberts,
are perfectly satisfied. We are willing to leave them as they are
we do not want to force any one of these counties into another
judicial circuit. We say they have no right; there is no justice in
coming before this Convention and asking that Kingsbury county
be attached to a circuit it will take them three days to reach the
center of that circuit and come back home, when they can go to
any portion of the Judicial Circuit composed of the counties of
Kingsbury, Beadle, Hand, Hyde, Hughes, Potter, Faulk, in one
day.

Now, in relation to the letter which was read by Mr. Sherwood,
from Kingsbury County. It seems that it is uncontradicted that
the Bar meeting, consisting of two members of the Bar only, one
elected Chairman and the other was Secretary. That was the
petition they presented to the Judiciary Committee as expressing
the sentiment of the people of that county. I believe, Mr. Presi-
dent, and gentlemen of the Convention, that the majority of the
members of the Judiciary Committee were with us, — were in favor
of doing what is right and justice so far as the people are concerned
living in the counties lying north of the Second Standard. This
report is not signed by all. Some who signed it said they signed
with a mental reservation that if they were not sure that these
counties lying north of the Second Standard were not fairly dealt
with they would see that they were fairly dealt with on the floor
of this Convention.

Now in relation to the statement that during the last five or
six years these centers have monopolized the time of the court ;
that the Court laid around Beadle and around Brown county and
that these outlying counties did not get their* fair proportion of
the services of the Judge. I say that I know that is a mistake.
I know that Codington has had more days' court during the last
three years, — I know that Codington county's calendar is in better
condition than is Beadle's. I know that the county of Hand is
in better condition than Beadle county ; I know Hyde is in the same

JUD CIAL CIRCUITS 223

condition; I know Spink county is in the same condition. But
there are gentlemen representing these counties who are here and
who can speak for themselves. I believe it is the desire of this
Convention to form these judicial circuits so that they will satisfy
as many of the people residing within their limits as possible.
The majority report provides a Fifth Judicial Circuit that is ob-
jected to by every county in it. The majority report submits to
this Convention the Sixth Judicial Circuit, which is opposed by at
least five or more of the counties that it contains. The third by
at least two. Now, I reiterate that Sully, Hughes, Hyde, Hand,
Beadle and Kingsbury, lying on this line of road are in favor of
a circuit such as proposed in this substitute. If I am in error I
would like to have some gentleman representing these counties
call attention of this Convention to it in some way. The gentle-
man who spoke for Hand county said the people were opposed.
Last night he said he did not know what the wishes of the people
were. The other gentleman, over his own signature yesterday in
his own handwriting, said the people of Hand county were op-
posed to the counties proposed by the substitute.

Mr. Couchman called to the chair by the President.

Mr. Hartley: Gentlemen of the Convention; I would ask the
same question ; who is it that represents Hand county ? Is it the
two men who were elected or is it the gentlemen who were elected
from the county of Beadle? Before the people of Hand county
asked me to run for the position which I now occupy, it was gen-
erally conceded to be the understanding that anything of the nature
of a shoestring arrangement of judicial districts should be voted
down. I came down here with that understanding. Two petitions
were sent down. They were not sent to either of the representa-
tives. Now, gentlemen of the Convention, you can see the forecast
of this thing. These petitions were gotten up under the dictation
of the people of Huron, so I am credibly informed, and were not
forwarded to the representatives of Hand county. If they were
not honest enough to represent their own people in the Convention,
why did they elect them? The men that got up that petition and
circulated it were asked by the business men of Miller to send it.
to me.

A Voice: It is evident that Hartley is a Democrat. (Laugh h-n.

Mr. Hartley: It was not done. We were ignored by the man
that got up that petition. I will say right here, without fear of

224 SOUTH DAKOTA DEBATES 1889

contradiction, you go to Hand county and talk with her people
and you will find that petition does not represent the people of
that county, and if I had time to explain these conditions of affairs,
I would bound by my word as an attorney, there is a different con-
dition on the road here now. These petitions were not gotten up
by the people of Hand county. I have it upon very good authority.
While this is in the handwriting of different persons it was not
signed by the attorneys of our Bar ; the petition that was circulated
in our county first was included in the county of Hyde, after this
petition was circulated and all the signatures upon it but two, —
a copy, not the original, was sent afterwards.

In the evening the members of the bar, or some of the members,
held a consultation. They were not satisfied with the man who
brought that petition down here, — they decided that they were
sorry that they had signed it. There is two men here now who
signed that petition,: — two men who are acquainted with the county
and they gave myself and my colleague that impression. That
after they looked over the matter they were not satisfied and that
they decided to present us with a different statement. I have
lived there seven years; Mr Anderson has the same, and we know
the people of that county. That petition does not represent the
sentiment of Hand county. After we had received that petition
and before I had heard the balance of the report, and belore I
received the letters last night, I gave it weight. I felt inclined to
obey the request of the bar, while I did not consider either Mr. An-
derson or myself had been properly treated. I said to one of them
that this district would be satisfactory, — that is true, I did say
that, — but what else did I say? Did I not say, I feared they would
come before this Convention with a different arrangement; that
I insisted that you should get together and settle the matter and
not have any conflict on the floor, that we ought to agree among
ourselves and stop our controversary, for just as long as Beadle
County wants Hyde County in that circuit, why, there is going
to be trouble. They must have a shoestring district; they must
have their own town accommodated the same as it has been.

. It went out over our district that Huron must not only have
the center, but must be mistress of the situation as in the past.

In regard to the new arrangement of this district, the arrange-
ment that is proposed by this substitute, if the counties can agree
upon it there will be no trouble. Can we agree? Spink county

JrmciAL CIRCUITS 225

it does not satisfy; it does not satisfy Faulk; it does not satisfy
Sully, Potter, Hughes. How many counties is that? Right on
the other hand east of us, they are dissatisfied. I will say in regard
to this, that as far as I am personally concerned, and supposing
Codington county is satisfied, I am satisfied. But it would not
be satisfactory to our people. While I am sorry that this condition
of affairs should exist, I think the people of Hand county are ca-
pable of saying what they want without being dictated to by out-
side parlies. I will say further that I have sent word at different
times to the members of the County Bar, what would be the ar-
rangement. I know the arrangement would be substantially as the
Committee reported. There was a good many Hand county folks
here last week. It was talked over. If there was any dissatisfac-
tion they were requested to speak out. I heard no word. The
man who brought this petition down here came down under the
instruction of a number of men that signed it. I am going to vote
for the original report. I am going to come down right now and
vote for the original report. We may as well say Hand counly is
Hand county as well as say it is Beadle county. It is well under-
stood by the members of the Bar of the county that once a man is
elected in that District, to the bench, he serves the people. No
man in that entire country up there will get on the bench unless
he promises to serve the people, — not to serve one town. He has
got to hold court in the various counties and do his duty ; that is
all the people are arguing for up there. They do not care who he
is, — whether Democrat or Republican, they say. A majority of
the people have said to me repeatedly that they do not want to go
to Huron any more. I have gone to Huron and have taken two
days or over on a very unimportant matter. If you think I am going
to take the expenses of making such a trip out of my pocket, you
are laboring under a delusion. But, if we take it out of our clients,
they begin to want a court at home. While this arrangement
may not suit some of the counties, I think it is the best we can do.
Personally, I think they have not given us a fair show. There are
other counties who have fault to find, — that they have not receivol
a fair show in the matter of services of the judge of the district.
On the other hand we have paid that Judge $1500 a year to go
around the circuit to hold chambers, so as to save clients unnecessary
expense. That did not afford the relief sought; that is why I
complain. I am well acquainted with a great many Huron people;

226 SOUTH DAKOTA DEBATES, 1889.

I never had any trouble with those people or with Huron attorneys.
My associations with the people of Huron have always been pleas-
ant, but I am tired of being compelled to go there every time I
want an 'order signed. Again what are you going to do? Then a
proposed county turns around in their position; you are as dis-
satisfied with the new county as with the old arrangement. Last
night I was invited to attend a meeting of those delegates ; I under-
stood all the delegates from the dissatisfied counties were invited
in there. They were not all invited. But since this happens, what
are you to do but accept what the Committee has given us ?

Mr. Cooper: The gentleman has asked is it necessary to come
in from the outside to represent Hand county? I leave that to
the Convention. I would like to ask this question: If any gentle-
man who signed that petition of the Hand county Bar has sent word
by letter or come in person, or sent word by anyone that he did not
want to be in the circuit with Kingsbury and Beadle counties ? I
will ask if any lawyer in Hand county, anywhere, or the gentleman
who has just left the floor ever said he did not want to be in the
district with Kingsbury and Beadle counties. We say that no
attorney who has signed that petition has declared that he did not
want to be in a district with Kingsbury and Beadle counties, but
some said they would like a circuit out west heavier than those
that had been east and made that objection. It was stated that
Faulk and Potter counties had objected. I say I am not wrong
on this matter, — I say I know what I am talking about and no
gentleman in this Convention will dispute me.

It seems that the gentlemen have a grievance, for instance,
Marshall and Day counties. I understand there are gentlemen
here who are representing those counties; I understood that there
are gentlemen here who are representing Brown, McPherson,
Campbell and Walworth counties. I have understood these gentle-
men to say if they wanted an order or injunction that they objected
very much if they lived in Campbell county, to travel by rail to
Aberdeen and from there eighty miles south to the city of Huron,
and from there one hundred and twenty miles west to the city of
Pierre to get their order. It has been stated that the Legislature
would, sometime in the future, grant circuit jurisdiction or vest
County Courts with Circuit jurisdiction.

That Mr. President, and gentlemen of the Convention, will,
in my mind, depend to a great extent upon the circumstances as to

JUDICIAL CIRCUITS 227

what situation these county courts will be placed in and what kind
of men are elected to fill those positions. Whether or not they are
capable men, whether or not they are men who are capable of
performing the duties of the office. If they are, I presume that
certain jurisdiction will be vested in these courts; otherwise I
presume likely it will not. And if it is not, what will be the result?
You will have trouble through these Judicial Circuits in the future
as we 1 as in the past. A man will have to travel over how many
different lines of road and through how many circuits? I say
this is a question that should be thought of by this Convention
before they pass upon the question. In the proposed circuit of
the substitute, what do we find? We find that these counties are
nearly all contiguous, — nearly all ^connected by direct lines of
railroad ; we find that the counties lying west of Aberdeen have
complete railroad connections with the county of Brown, Marshall,
and Day; we find the counties lying west of the county of Kings-
bury have connections throughout the Circuit with the counties
lying north, the counties of Potter and Faulk, have direct com-
munication with the balance of the Circuit. I say again, the
gentlemen might not have heard what I said before I repeat it
now, — I want you to say whether or not members of the Hand
county Bar are opposed to the proposed plan, or prefer Hughes, Sully
Hyde, Beadle, and Kingsbury counties. I ask if any gentlemen
of Hand County were ever opposed to the Judicial Circuit com-
posed of Sully, Hughes, Hyde, Beadle, Kingsbury and a couple
of counties lying north or south.

Mr. Humphrey: If the gentlemen of the Convention will
pardon me for a moment, I will attempt to clear away some of
this rubbish. In the first place I congratulate myself in that what
I may say is addressed to a body of gentlemen and not to a
petit jury, who are selected under them, and in consequence of
this that this argument will have more influence with you than
with a jury. Further than this, it will not he necessary for me to
call your attention to the fact that positive assertion is no more
argument than that a check is just a slip of paper. It has been with
considerable amusement that I listened to and witnessed the as-
surance that the gentlemen from Beadle county, — the extra-
ordinary assurance that they have shown in pleading for othrrs.
and while they include Beadle county among the list of dissatisfied
counties, they have not called your attention to a single ground for

228 SOUTH DAKOTA DEBATES 1889

that dissatisfaction, — not a single ground. Their solicitude is
remarkable in that it refers only to others. While I do not descend
to insinuations as to the motives of others, that alone would in-
dicate a motive of their own. We can but infer that the gentlemen
from Beadle county must have some cause for alarm to be connected
with Brown county, and if it is true, why should they not immed-
iately contribute to smaller counties the same fear of being con-
nected with them. The gentleman who first occupied the floor
from Beadle county said that there can be nothing of the nature
of compactness in a district 130 miles long. Well, the district,
under the apportionment made by the Committee of which Beadle
county is a part, is 120 miles long. These are small inconsistencies,
to which I call your attention. Another amusing thing, to my
mind, presented by the gentleman who first occupied the floor from
Beadle, is this: He, through some stretch of imagination, is able
to discern some difference between the duties of the delegates who
are on Committees and those who are not on Committees. I came
here representing a locality ; I came here representing all and each
of the localities; I know no difference in the discharge of my duty,
either as a Committeeman or as a member of this Convention. The
gentleman who last had the floor from Beadle county, assures us
that Spink county would have reason, as he terms it, to "kick" on
the proposed substitute, he admits that others have reasonto "kick"
on the plan proposed, but has shown no such reason why Beadle has
any reason to "kick" under the plan as proposed by the Committee.
It is told you by the Chairman that the Committee devoted most
careful consideration and great industry in endeavoring to present
to this Convention a report that would meet the approval of the
Convention. He told you they had considered every proposition
that had been brought before it, and that the Committee met on the
very evening of the very day they were appointed and they gave
notice that their doors would be open to members of this Conven-
tion and notice was given where they met from time to time and
there was no time but what those doors have been open for all
who wished to address the Committee during its session for a
period of about. three weeks. I was amazed by the statements
made here and am confident they must have been unguarded
statements. It is certainly an erroneous statement that they had
not had an opportunity to make their arguments before the Com-
mittee. If anyone attempts to impugn either the motives of this

JUDICIAL CIRCUITS 229

Committee of this Convention in saying or implying in any sense,
a dishonorable motive on the part of this Committee it is an insult,
not only to the Committee, but one to the Convention. As our
Chairman informed you, we considered first, carefully the powers
of this Convention; also the expediency, and next the necessity of
enlarging these districts. There was some diversity of opinion; a
large majority were of the 6pinion, and that opinion was founded
upon the intelligence of the Bar, — for other members of the Bar
were before that Committee, not only from the Convention, but
without. The question of expediency bore also upon the question
of the powers for this reason, it was simply a question of doub ,a
large majority feeling the power was clear and distinct and at most,
but open to a question of doubt resisted the expediency of increasing
the districts, — that it would interfere with the President's admitting
us. I wish to indicate the care that was exercised. These ques-
tions were weighed as carefully as they might be. What would
be the effect of increasing the facilities of the. court? It was in
view of the added facilities under the Constitution that it was finally
determined by a large majority that there was no great need of
increasing the facilities at the present time. During all this time
that these gentlemen were insinuating that there were political
motives controlling the Committee I will simply say this, that there
is no doubt that there are many ambitious towns in this State
and many people aspiring, perhaps among those facing yourself,
Mr. President. So. far as I know this was not the motive that in-
fluenced any man upon that Committee. The reason that it \vas
held at the lowest possible estimate of necessity, was this, that at
present we had to make our apportionment on a vote. No satis-
factory apportionment can be made except by publication under
a census. The census will be taken in 1890. We will then have
a basis upon which a re-apportionment can be made that will bo
satisfactory to all. Therefore, it was not considered expedient
or necessary by the Committee that they should attempt at the pres-
ent time to provide for the future of Dakota, — simply for the near
future during the period previous to the taikng of this census.
As to the plan upon which the form of the districts was determined,
that was the question upon which there seems to have been the
most charges made concerning corruption on the part of the Com-
mittee. It occurs to me that you may not all know what reeently
appeared in the Aberdeen Republican, as erting that that Com-

230 SOUTH DAKOTA DEBATES 1889

mittee was packed. Well, I will say that when I first read the
names through of the members-elect of the Convention, I found
that there was about one-third of the Convention, Democrat. I
know six Democrats of the Convention on that Committee. I will
add, though it may not be pertinent to the argument, that while it
is plain that these north counties were unrepresented upon that
question, events show why. The most' important duty before this
Convention was a division of the archives, assets and liabilities of
the two states. That was the paramount duty. Who was to do
it? Simply a commission of seven, over whom we had no control.
We could not dictate to them in the slightest degree. Who con-
stitute that Committee? Was the north portion of the State
ignored? They had two out of the seven members of the Com-
mission. They wanted three. It is said that the gentleman from
Brown county claims that they did not wish it, but as I understand
it there was two candidates from Brown county for the position.
One got it, — the other got left.

Now, in regards the forming of these districts all that can be
said is, that the forming of the districts is fixed by the express
terms of the Constitution of the Convention of 1885. That Con-
stitution says that these districts shall be compact in form. The
very men who drafted that Constitution approve of the districts
as reported by the Committee. They are compact in form in the
nature of being square or as near square as may be. Mr. Presi-
dent, while we have been guarded step by step, we have progressed
in our duties to avoid stepping over the bounds in the least par-
ticular under the provisions of the Omnibus Bill, feeling that we
had no right or power to amend the Constitution in any way or
shape except as provided by the provisions of that Bill. When we
have exercised that care in the discharge of all our duties so far,
shall we begin now to violate its spirit? Gentlemen have stated
here that there was apparently quite a large minority in that Com-
mittee opposed to the report. Has it occurred to you that if that
was true that it was strange that they have no minority report?
How is this matter brought before the Convention? In any way
implying disagreement in the Committee rooms? Mr. President,
this opposition is instigated by those who have shown themselves
so solicitious with regard to the convenience of the others and so
ready to assert what the other's wishes are. The gentleman from
Beadle should have presented a minority report and he would

JUDICIAL CIRCUITS 231

have stated his reasons The facts of the case are that it is im-
possible to please all, as glad as we would be to do so. Your Com-
mittee used their every endeavor to adopt a plan that would please
the 'greatest number possible. Every possible plan that could be
devised has been tried and tested and we finally determined upon
a plan of a vote of apportionment that would please all but a few.
It is a matter, simply an impossibility to please everybody. Where
we find a single county, as glad as we would be to accomodate them,
—carrying out the spirit of this Constitution, we would be glad to-
do so, but in the discharge of duty we should not hesitate even upon
this point to do our duty and make an apportionment that would
accomodate the greatest number. They have asserted that the
substitute accomodates more than the majority report. It is
claimed a portion of the counties whose voice they claim to speak,
but secured it by sending out to get it. It is presumed that the
delegates on the floor of this Convention, who represent those count-
ties know the needs of their people and will -not prove recreant to
the trust imposed upon them. I will say in this connection also,
in conversation with a gentleman representing Campbell, who
will vote for the substitute in representing the voice of his con-
stituency, that he told me that they went to Aberdeen in preference
to any other place to attend court. When I asked him why they
wanted to go there or anywhere else under the provisions of the
Constitution the judges were to go to the people of the counties
and not the people to go to the judges as heretofore. He replied
that since they learned that fact they had no anxiety to go to
Aberdeen to attend court. Another reason is this, Mr. President;
these little counties and these large counties especially have almost
a year's calendar on hand and in the new counties of the west it
will be as in the past that they will get court at the convenience of
the larger counties. It does impress me as somewhat strange that
these entire counties should be afraid to stand alone, — why they
should wish to have tied to them counties by the half dozen or more
which I think is one of the incomprehensible things.

The people west would say almost in one voice, we favor the
adoption of there port presented by the Committee ; they are able to
stand alone and they want judges to look after their business and
as yet their business is not so extensive but what a judge coming
in there could keep up with any counties in their district, except
perhaps Hand and Hughes with an accumulated docket. I was

232 SOUTH DAKOTA DEBATES 1889

surprised by the argument by the gentleman from Beadle, on this
floor. I should not refer to it, though the argument was presented
to the Committee, and that is why I was surprised that it was
presented here after it met with the reception it did in the Com-
mitte room, I am surprised that it was presented on this floor and
had it not been so presented I should not have referred to it. It
was this: That it was wrong and un-desirable to both parties
who had been together before now in business relations to be
separated and that the counties who had been associated with
Beadle wished still to remain with Beadle because all was har-
monious between them and everything working so nicely. What
stuff! I want to say, gentlemen of this Convention, that I have
no personal motives or any personal interests to serve in the
formation of these districts. It is my purpose, as under my oath,
it is my duty, to use my best influence in securing these districts
as I believe best meet the requirements of the Constitution and
best serves the interests of the people. I will say that so far as I
know we have no candidate for judge in the county from which I
come I am certainly not eligible, not being an attorney. I
will say further, no matter from what county the judge is elected
that no one county, Mr. President, will have more court or more
chambers than any other county.

Mr. Wood: As a member of the Committee, I contended all
along that eight circuits were not enough. The difficulties that we
are now experiencing is a difficulty that I before contemplated,
and if the state were to be divided into nine circuits I am satisfied
it would not be too many. I am also satisfied that such a division
should have been made as to completely remove this entire difficulty.
There is some inequity in this division contended for, contained in
the report of the majority Committee. There is some inequities
contained in the substitute. It never can be arranged in this way
and get a satisfactory division of the circuits of this State. In my
judgment, having had twelve years experience at the Bar in this
Territory, in my judgment, these circuits are not sufficient. While
they may answer for a time, I think the Convention is giving the
State an insufficient number of judicial circuits. I therefore move
that this report and the proposed substitute be re-submitted to the
Judiciary Committee with instructions that they report on the
morrow, recommending the creation of nine circuits.
Mr. Van Tassel: I second the motion.

JUDICIAL CIRCUITS 233

Mr. Fellows: I rise to second the motion of the gentleman
from Pennington County and in doing so to say this, — that in my
opinion nine districts will soon be insufficient to accommodate the
business that they will have to perform in the administration of
the justice as it ought to be administered in the courts of this
State. That it will require at least nine circuits and further it
would afford us a happy solution of the difficulty we have gotten
into here today and at the same time satisfy all localities. I most
heartily second the motion of the gentleman from Pennington.

Mr. Sterling: I would say, as stated in the report, that the
Committee have also had this subject under very careful consider-
ation. It was with reluctance that some of the members of the
Committee yielded to any increase at all. It was assented to, I
believe, that one additional circuit in the Black Hills country would
be sufficient to transact their business there. It was said by a
good many members of the Committee at first that five circuits
were satisfactory to themselves as shown, but that the increase
would be sufficient if the State was properly apportioned in the
districts in which to do business. I think that this motion to add
another district for the territory east of the river ought not to be
raised.

Mr. Humphreys: The Committee, as the Chairman has stated,
did most carefully consider that matter. The gentleman making
the motion and the gentleman seconding it were the only two that
I now remember who finally favored the idea of having nine circuits.
It was the judgment of the Committee that that would not be the
sense of the Convention; that it would be neither expedient nor
necessary 'o extend the number beyond eight. I doubt if it would
be possible to arrive at any other condition than now exists, if
we did have nine circuits. I move that the motion of the gentleman
from the Hills be laid upon the table.

Which motion was seconded.

The President: You have heard the motion. Mr. Woods,
of Pennington, moved that the majority and minority reports
be referred back to the Committee for revision; Mr. Humplm-vs
moves that the motion be laid upon the table. Are you ready for
the question.

The motion to lay upon the table prevailed.

Mr. Sterling: I have been a little bit surprised, gentlemen,
at the assumption that has been manifested by some members of

234 SOUTH DAKOTA DEBATES 1889

the Convention in favor of this amendment or substitute, and
who have spoken upon that side It seems to be a remarkable
solicitude for the welfare of the other counties that is exhibited
by these gentlemen and you will notice, gentlemen, that the most
of the opposition to the majority report and the second in favor of
this amendment comes from a certain section, from a certain
county. It eminated from that same county in the Committee;
it eminates from that same county here in the Convention. These
gentlemen deny and protest it is not for political purposes that they
object to the majority report, and say that they do not know that
they have any candidate for judge. That there is nothing of that
kind. I will ask you, gentlemen, if at the coming election there
is no other political question to be determined than the judgeship,
or whether that may be any motive to base this particular form or
district upon as reported by the majority of this Committee. But
the gentlemen come upon the floor and make a strong point as they
seem to make, — as they would have this Convention believe to be
that the counties to the west of the county of Beadle as against
Beadle and Kingsbury counties will overcome Beadle and Kings-
bury counties in Convention, in the nomination of a judge what
does that amount to? They are not so particular as to that but
they have other interests at stake. What does it mean? Can
we not see it? To have these counties west of them entirely tribu-
tary to fhem, their political preferment to be included in that same
district which they have mapped out. It may be capital for them
to deny their reasons and say there are no reasons for it.
What do we make these judicial districts for, gentlemen of the Con-
vention? Is this Committee to be in the despicable business of
making out circuits to gratify the aspirations for judgships? I
say that is one of the questions or rather influences that this Com-
mittee had to contend with, guard against, while in session. It is
one of the very things we will, in Convention, have to guard against.
The opposition, most of it, to this report, comes from a county that
for the transaction of business is one of the very best circuits of
South Dakota today, and they dare not deny it. Four counties in
the circuit and every town in it of "free access to any judge from
whatever part of that circuit he may come. They cannot say that
each of these counties shall not have its reasonable share of his time
and attention, — let him come from where he will. Then gentlemen,
it must be from some other motive than the discharge of their

JUDICIAL CIRCUITS 235

business that these gentlemen from Beadle county oppose this
report and I think you are by this time aware of it. They pretend
to speak the sentiments of these counties around them. I ask
you if they speak the sentiments of Kingsbury or that of the counties
west of them. From letters from a district attorney of Hand
county, in which he calls attention to the very petition presented
by tne gentleman from Beadle, in which he says that they made a
mistake and desires that their names be cancelled therefrom.
They pretend to speak for Hand county in fact, made what would
seem to be the strongest argument. The gentlemen from Hand,
delegates on this floor, whose opinion you are bound to respect,
say they are opposed to the minority report. What else is there
in this? Will the gentlemen deny that their petition, signed by
the attorneys of the Bar of Hand county, has been followed here
by the men who signed it, and have told the members of the Com-
mittee and members of this Convention that they are satisfied
with the district as embodied in the report of the Judiciary Com-
mittee?

Mr. Sherwood: I deny that any gentleman has done anything
of the kind and you may publish it. I heard it told, and told by
other gentlemen who have been told the same thing. I simply say
that I am in duty bound to correct the impression that these
gentlemen from Beadle try to leave in reference to Hand county.
I say I know the delegates here from Hand county reflect the senti-
ment of the people there. What else is there in this report that is
not satisfactory? I believe, gentlemen, that we have disposed now
of the question in reference to Beadle county and the counties west
of Beadle.

There is some opposition from the north, — it is opposition that
is entitled to command respect. The gentlemen making that op-
position do so without reference to capital purposes or judgship
purposes or any other unworthy motive. The Committee have
tried their best to satisfy them but we found that with the other'
interests of the other districts to make, we could not do any better
than we did do. Then is it so very inconvenient, so distressingly in-
convenient for all those gentlemen in the north ? Look at the map
and see. On the east is Day county. The gentlemen from Day
county protest. What kind of an arrangement will we have
yonder when admitted as a State? We shall undoubtedly have for
these counties two terms of court each year in each of them What

236 SOUTH DAKOTA DEBATES 1889

are the communications that Day county would have with the other
counties around her? She will have Grant county on the east with
two terms of court yearly at which her attorneys can transact
business. What connection below? Clark county with two
terms each year at which her attorneys can transact business, with
which they have direct communication. He would go from
Webster to Bristol and from Bristol to Elrod, which is about
seventy miles from Clark. Is that very inconvenient? Those
trains connect What else is there about it? Why two terms
of court in Day county itself, with good railroad connection, and
if they have any great stress they don't have to walk, but can take
the train eighty miles over to Watertown and transact their busi-
ness. So I say as against the arrangement that this Committee
has made, with all the work they have done, you will not with those
advantages that appear so plainly upon the map, better th : con-
dition of the county of Day. I do not think you will set aside this
report of this Committee. What about Kingsbury? There is
objections from there. I say exactly the same argument obtains
for the county of Kingsbury. It has Brookings on the east of it
with two terms of court a year. It has its own two terms of court
a year at which the attorneys may attend and transact their busi-
ness. If you wish to go to Clark, the trains are reasonably ac-
cessible to the county of Kingsbury. In addition to this, gentle-
men, it will probably be provided, if the judges do not manifest the
disposition themselves to do it, by the Legislature that the ,'n-
equities perhaps referred to by Mr. Van Buskirk, of Codington
county, will force the matter upon their attention. The judges
will be required to hold a day in chambers each month 'n each
county in his circuit, and that with the jurisdiction which may be
conferred as the gentleman from Codington has said, upon the
county courts to grant motions and hear motions and chambers
will still further relieve this dissatisfaction. Let us look at the
•(ther side of the Fifth District,— McPherson, Campbell, Walworth
and Edmunds.

Gentlemen, I am surprised to hear the cry of distress go up
and then look at the map. Why, McPherson has no communication
with Brown county by railroad except down through Edmunds
county. Campbell turns to Aberdeen as a Mecca and she has to
perform her pilgrimage by way of Eureka. Walworth goes through
Edmunds to Brown county, and yet here is a gentleman from

JUDICIAL CIRCUITS 237

Edmunds having the most direct communication with Brown
county through which county these other counties have to go, who
tells us that they want a district by themselves away. from Brown
county. It is more than likely they will have railroad communi-
cation with other parts of the district. There has already been
'started a road that extends in that direction and which will un-
doubtedly be completed in a short time, and each county in that
district will be connected with the other by good railroad com-
munications. So, gentlemen, I believe that these objections, when
we come to consider what has been done for the whole state and the
way the Committee have had to plan and figure in order to satisfy
the different places and apportion them according to the population
and according to the communications so far as possible, that this
Committee report must commend itself to you for your adoption.

(Repeated call of "Question".)

Mr. Sterling: I move the previous question.

Motion seconded.

Mr. Stoddard: I raise the point of order, I had the floor.

Mr. Sterling: The motion is withdrawn. I beg pardon.

Mr. Stoddard: Gentlemen are calling for the question. I
am not disposed to take much of your time if I could; I am not a
lawyer or a professional speaker; I have been talked to by them.
What few remarks I do make I hope I will not get quite so noisy
as my friend from Beadle and certainly not so excited as my friend
from Spink. I KNOW I cannot talk so smooth and oily as my friend
from Faulk.

There are a few points that I wish to talk about. One is this
— about Beadle county. The most of the talk seems to be of this
nature that indicates that most of them are partial to Beadle
county and Huron in particular. Now if that is a fact, we cannot
help it. Up north there are some six counties in a block with Kings-
bury down here and Hand that makes eight altogether, besides
Beadle. We certainly are not responsible for the lawyers of the
city of Huron. Our counties feel that there is injustice done to
all these counties and it appears to me that greater injustice will
be done by adopting the majority report.

We, from the north, came down here with a clear understanding
not from any combination as has been insinuated, — nothing of
that kind — but by talking and instructions and from the feeling
all through our counties and Brown county and from all.

238 SOUTH DAKOTA DEBATES 1889

We have no petition, but no one denies but what we want it
as the substitute calls for. Walworth and McPherson certainly do
and Day. The one exception is Edmunds county. When we
came down here we understood that Edmunds wanted to go with
the district as it was at present under the Territorial div;sion.
But since then my friend from Faulkton has got^two or three letters
and there seems to be little doubt but that the lawyers of Ipswich
want to be joined to the Brown county district.

I present it to this Convention ; is there any sense in saying
that Edmunds, whose county-seat is only twenty-six miles from
Aberdeen should oppose the motion. I leave it there, if there is
any sense in that.

I want to ask the gentlemen from Codington and Clark, what
serious objection they have got? This substitute leaves them
in good form; I ask the same question of Sully and Potter — they
are small counties but have just as good right to be represented
as any. What serious objections have they to re-districting this
portion of the State and let some nine counties dissatisfied under
the substitute that otherwise, if the Judiciary Committee report
goes through, are opposed emphatically and positively to it. Ex-
cuse me gentlemen, I don't know but I am getting noisy.

It brings up another point. Nine counties positively and
emphatically opposed to the majority report, so called. There are
some other counties in favor of it and opposed to the substitute.
But no good, tenable objection has been stated on this floor.
The gentlemen from Codington and from Faulk and from Clark
give no substantial reasons why they are not satisfied with the
substitute. They have told you about shoe-string districts, they
have represented them stretching from the Minnesota state line to
the river and how convenient it was to go from one county to
another. But they have not stated any reason why the wishes of
these counties up north should not be respected ; I submit that as
a fact.

Just one other thing. The gentlemen from Spink seem to harp
so much upon the fact that the Committee has labored so long and
continuously while getting up this report. I am not a member of
that Committee, but I am somewhat familiar with their work. In
the first place they took about a week to consider the question of
power, the question of expediency. Two or three of the gentlemen
said that they had our case in hand and they would do us justice.

JUDICIAL CIRCUITS 239

All right, we rest there easy. In the meantime a joke began to be
passed around. They came, first one, then another, with the re-
mark, "How would you like Beadle, Spink, Brown and Marshall
in your district?" It was passed around to everyone as a joke and
so taken. Nothing was thought about that; thought it was not
possible to perpetrate such an eternal joke as that upon us. But
it seems that some of the Committee went down to the Chairman,
the gentleman from Spink, and spoke of the joke, lo and behold
the gentleman took it seriously. There was just a few hours labor
on that entire joke,— just a few hours. The most in portant part
of the whole labor, I understand, was undertaken in those very few
hours and the beginning of that work was a joke.

Now, gentlemen, I do not know whether we can count on that
or not, but certainly we have a most emphatic and positive ob-
jection to that majority report. We thus appeal to you — appeal
to you for this substitute. It hurts no one at all and everyone
will have facilities for getting back and forth throughout the dis-
trict. We thus appeal direct to you, gentlemen of this Convention,
and I appeal to some of the members of the Judiciary Committee
also. There is none of those counties that want to go in that
unless it is Spink and with possibly the exception of Spink none
of these want o go nto that district. I hope you will do us justice.

Mr. Clough: I move the previous question.

Motion was duly seconded,

Call of "Question" from all parts of the House.

Mr. Willis: The majority can say whether they want the pre-
vious question.

Mr. Lee: I believe we are convinced that we do not want to
stay any longer. If we stay much longer the "Old Man" will want
to make aspecch and then he will stay here all night.

Mr. President: Shall the question be put?

This motion prevailed.

Mr. President: Mr. Sterling of the Judiciary Committee
brought in a report Mr. Spooner of Kingsbury brought in a
substitute. Now the question is upon the substitute.

Mr. Jolley : This is an amendment.

The President: The vote then is upon the amendment.

The Chair being in doubt roll call was resorted to.

Mr. Edgerton, of Davison: At this time I desire to state
to the Convention my reasons for giving my vote in the way I

240 SOUTH DAKOTA DEBATES 1889

voted upon this question. It is known, perhaps to this Convention,
the position I took in reference to the Omnibus Bill, when this Con-
vention assembled. I have not changed- my attitude upon hat
question. I believed then that this Convention had no power
except those powers expressed by the Omnibus Bill. It was the
charter of the powers of this Convention. That I may not be mis-
taken I will read the section under which we have the right to re-
apportion the State. In defining the powers of this Convention
the Omnibus Bill provides the scope and powers of this Conven-
tion: "That they shall also submit the articles and propositions
separately submitted on that election, including the question of
locating the temporary seat of government with such changes only
as relate to the main boundary of the proposed state and the re-
apportionemnt of the Judicial and Legislative districts, and such
amendments as may be necessary in order to comply with the pro-
visions of this Act."

Now, we admit this, if it is necessary to increase the number
of circuits in re-apportioning the State of South Dakota, then this
Convention has the power to increase the number of circuits. But
if it is not necessary to increase the number of circuits then it does
not necessarily fall within the powers of this Convention as granted
to us by the Omnibus Bill. There are three inhibitions in the Con-
stitution in reference to the Legislative and Judicial Department
so far as the re-apportionment is concerned. In the Legislative
Department of Article 3 of the Constitution in Section 2, reads as
follows: "The number of members of the House of Representatives
shall not be less than seventy-five (75) nor more than one hundred
and thirty-five (135). The number of members of the Senate shall
not be less than thirty-five (35), nor more that forty-five (45)."

There is not a member of this Convention that will claim that
this Convention has a right to go beyond the limits provided in
nection 2. In reference to the Supreme Court the limitation in
that is this: Section 6 of Article V, reads, "The number of said
judges" that is the Supreme Judges — "The number of said judges
and districts may, after five years from the admission of this state
under this Constitution, be increased by law to not exceeding five."
There is not a member of this Convention that will claim that this
Convention has the power to make four or five Supreme Judges.
This is a limitation upon our powers; consequently it will not be
claimed the Supreme Court shall consist of more than three judges

JUDICIAL CIRCUITS 241

for the first five years. Under the head of Circuit Judges, the
limitation, in my opinion, is just as absolute: "The Legislature
may, whenever two-thirds of the members of each house shall con-
cur therein, increase the number of judicial circuits and judges
thereof, and divide the state into judicial circuits accordingly,
taking care that they may be formed of compact territory and be
bounded by county lines, but such increase of number or change
in the boundaries of districts shall not work the removal of any
judge from his office during the term for which he shall have been
elected or appointed." The proposition is this: That this Con-
vention has no power in re-apportioning this State for legislative
purposes to increase the number of circuits beyond the limit pro-
vided by this Constitution, nor the number of the House beyond
that, nor has this Convention the power to increase the number of
judges upon the Supreme Bench for the next five years; nor, in
my opinion, have we any power to increase the number of circuits
except by two-thirds vote of the Legislature. That • Legislature
assembles within ninety days ; that Legislature by a two-thirds
vote, not by a bare majority, may increase the number of circuits
to seven or eight or nine. Consequently I am not in favor of the
motion ; that this Convention has no power to go beyond the number
fixed by the Convention of 1885, believing as I do that this is one
of the limitations placed upon this body. I shall be obliged to
vote against this motion. This question rests with me, not upon
a question of politics, but upon a question of law ; upon that I base
my reasons for my vote upon this question. Mr. Chairman, I
vote no.

Mr. Humphrey: If it would be allowed, I would ask a ques-
tion. Would, in your judgment, our increasing the number in
any manner endanger our admission under the Presidential Proc-
lamation?

Mr. Edgerton, of Davison: I do not believe that I would say,
for this reason: It is a question, I admit, upon which lawyers
differ; I admit the fact that a large majority of the lawyers of this
Convention differ with me upon this question ; it being a question
upon which lawyers may honestly differ and come to different
conclusions. I do not believe the President of the United States
will consider it of sufficient importance to bar admission under the
proclamation.

The amendment was lost by a vote of 22 ayes and 39 nays.

242 SOUTH DAKOTA DEBATES, 1889.

Mr: Hayes: I move this as an amendment to Section 5, by
striking out the words "from districts". Also to amend Section
6 by striking out the words "and districts." Section 10 by
striking out the words "and at the time of his election be a resi-
dent of the district from which he is elected."

Mr. Hole: I rise to a point of order; the previous question
has been called and that has not been settled.

The Chairman: I think you are correct ; the previous question
having been moved.

The Chairman: The question now, is upon the original mo-
tion as offered by the Chairman of the Judiciary Committee. Mr.
Sterling, how will you vote?

A Voice: By ayes and nays.

Mr. Cooper: I desire to change my vote from aye to no.

Mr. Heninger: I desire to change my vote from aye to no.

The report was adopted by a vote of 42 ayes and 19 nays.

Mr. Wescott: I move the report be made the special order for
tomorrow.

Mr. Peck: Is not it adopted?

Mr. Hole: I move to reconsider this question.

Mr. Humphrey: I move the motion to reconsider be tabled.

Which motion received a second, and prevailed upon reaching
a vote.

Mr. Willis: I move we do now adjourn.

The motion to adjourn prevailed and the Convention was
adjourned until tomorrow, at two o'clock.

TWENTY-SECOND DAY.

Sioux Falls, Dakota, July 25, 1889.

Two o'clock P. M.

Pursuant to adjournment, Convention convened with Pres-
ident Edgerton in the Chair.

Rev. Mr. Clough: Almighty God, our Heavenly Father, we
thank Thee for Thy merciful providences toward us, and the com-
forts we have enjoyed. And no was we come to the knotty problems
in our work, we pray that Thou wilt give us wisdom, and strength
and discretion, and understanding that all these things may be done
as they ought to be done ; that we may further righteousness and
good government in this new State. Guard not only the interests
of the State, but those who are near and dear to us at home; for
Christ's sake, we ask these blessings.

AMEN.

Mr. Young: I move that the further reading of the report
as "ar as it relates to the reports be dispensed with.'

Motion prevailed.

The "President: Communications and Presentations of pe-
titions.

Unfinished business of the previous day.

Reports from standing Committees.

Mr. Humphreys Committee on Printing make the following
report:

July 25, 1889
MR. PRESIDENT:

Your Committee on Printing have had the desirability of put-

244 SOUTH DAKOTA DEBATES 1889

ting into the hands of the people, the Constitution, submitted to
them by this Convention, under careful consideration, have in
structed me to report that they recommend that this Convention
do provide for the publication and distribution of 200,000 news-
paper supplements containing the Constitution and Schedule,
10,000 of wh'ch shall be printed in the German, and 10,000 in the
Scandinavian language.

All of which is respectfully submitted,

H. A. HUMPHREY,
Chairman Committee.

Mr. Sterling: The Judiciary Committee have a report on a
matter rererred to it.

Mr. McFarland sends a report to the Secretary's desk.

The Clerk reads the report of the Committee on Judiciary
as follows:

MR. PRESIDENT: —

Your Committee on Judiciary, to whom was referred the ques-
tion as to whether this Convention has the legal power to provide
for the election of a circuit clerk at the October election, direct
me to report that the Committee, having had said question under
consideration, are of the opinion that the Convention has the legal
power to provide for such election, and recommend that provision
for the election of such officer be made in the Schedule and Ordi-
nance.

THOMAS STERLING,
Chairman Judiciary Committee.

Clerk reads the report of the Committee on Legislative Depart-
ment, as follows:

Sioux Fa'ls, July 25
MR. PRESIDENT. —

Your Committee on Legislative, to whom was referred Article
III, entitled, "Legislative Department", has considered the same
and have compared said Article III with the Sioux Falls Consti-
tution and the Act of Congress known as the "Omnibus Bill", and
have instructed me to report the following as Article III of the

RELIGIOUS TOLERATION 245

Constitution, and that the same is in accordance with the Sioux
Falls Constitution and the Omnibus Bill.
No amendments made.

A. B. McFARLAND,

Chairman
SAMUEL A. RAMSEY,

B. F. LYONS,
JOSEPH ZITKA.

Mr. Hole offered a substitute as follows:

Sioux Falls, D. T., July 25, 1889.
MR. PRESIDENT: —

Your Committee on Schedule and Submission, to whom was
referred, "An ordinance irrevocable without the consent of he
United States and the people of the State, relating to religious tol-
eration, public lands, taxation of lands, debts of the Territory of
Dakota and public schools," have had the same under consider-
ation and have instructed me to report as follows:

That the following be a substitute for the above described
ordinance, and that the following be substituted as Article XXII
of the Sioux Falls Constitution, as being directed by. the Act of
Congress, known as the "Omnibus Bill", and your Committee
recommend that the following be adopted as Article XXII "Com-
pact with the United States", and that the same be adopted by
this Convention.

ARTICLE XXII.

COMPACT WITH THE UNITED STATES.

The following article shall be irrevocable without the consent
of the United States and the people of the State of South Dakota
expressed by their Legislative Assembly.

First: That perfect toleration of religious sentiment shall
be secured, and that no inhabitant of this State shall ever be mo-
lested in person or property on account of his or her mode of re-
ligious worship.

Second: That we, the people inhabiting the State of South
Dakota do agree and declare, that we forever disclaim all right and
title to the unappropriated public lands lying within the boundaries
of South Dakota ; and to all lands lying within said- limits owned and
held by any Indian or Indian tribes, and that until the title thereto
shall have been extinguished by the United States the same shall
be and remain subject to the disposition of the United States and
said Indian lands shall remain under the absolute jurisdiction and
control of the Congress of the United States.

That the lands belonging to citizens of the United States re-

246 SOUTH DAKOTA DEBATES 1889

siding without the said State, shall never be taxed at a higher
rate than the lands belonging to residents of this State. That no
taxes shall be imposed by the State of South Dakota on lands or
property therein belonging to or which may hereafter be purchased
by the United States, or reserved for its use. But nothing herein
shall preculde the State of South Dakota from taxing as other
lands are taxed, any lands owned or held by any Indian who has
severed his tribal relation and has obtained from the United States,
or from any person a title thereto by patent or other grant, save
and xcept such lands as have been, or may be granted to any
Indians or Indians under any act of Congress containing a provision
exempting the lands thus granted from taxation, all such lands
which may have been exempted by any grant or law of the United
States, shall remain exempt to the extent, and as prescribed by
such act of Congress.

Third: That the State of South Dakota shall assume and
pay that portion of the debts and liabilities of the Territory of
Dakota as provided in this Constitution.

Fourth: That provision shall be made for the establishment
and maintainance of systems of public schools, which shall be open
to all the children of this State, and free f . om sectarian control.

By order of Committee,

BY L. H. HOLE, Chairman.

Mr. Jolley: That was a mistake; there are two reports ac-
companying that.

The President: Consideration of reports of Standing Com-
mittees.

Report of the Committee on Legislative Apportionment.

Mr. Van Tassel: I move that the report be adopted.

Which motion received a second.

The Clerk reads at this point the report of the Committee on
Legislative Apportionment as follows:

Sioux Falls, July 24, 1889.
MR. PRESIDENT: —

Your Committee on Congressional and Legislative Apportion-
ment, to whom was referred Article XIX of the Constitution, hav-
ing had the same under careful consideration, beg leave to submit
the following report relative thereto, and in which report there are
no changes of the Constitution, except as relates to the reappor-
tionment of districts as provided for in the Omnibus Enabling
Act, and adding thereto a provision that the State shall constitute
one Congressional district, from which two (2) Congressmen shall
be elected at large. All of which changes are within the provisions
of the Enabling Act, and herewith report Article XIX with said
changes incorporated therein and respectfully recommend the

LEGISLATIVE APPORTIONMENT 247

adoption of the changes and the resubmission of the Article as
amended.

All of which is respectfully submitted,

C. H. VAN TASSEL,

Chairman.
W. H. MATSON,
J. V. WILLIS,
R. F. LYONS,

A. O. RlNGSRUD,

JOSEPH ZITKA,
M. P. STROUPE,
WM. S. O'BRIEN,
SANFORD PARKER,
E. E. CLOUGH,
M. R. HENINGER,
I. ATKINSON,
C. R. WESCOTT,
T. W. P. LEE,
E. G. EDGERTON,
C. A HOULTON,
J. G. DAVIES,
H. M. WILLIAMSON,
S. F. HUNTLEY,
J. A FOWLES,
GEO. H. CULVER,

T. F. DlEFENDORF,

C. G. COATS,

T. W. THOMPSON.

The President: The report of the Committee on Legislative
Apportionment is before the Convention and the Chairman of the
Committee moves its adoption. Is the Convention ready for the
question ?

Mr. Sterling: I move as a substitute that the report of this
Committee be postponed until tomorrow; I will say that this
report is just received ; we have had no opportunity to examine it
until the last few minutes; it is an important report; I think we
should have further opportunity to investigate it.

Mr. Wood: I would suggest that it be postponed until eight
o'clock tonight, as I understand we meet this evening.

The motion to postpone, by rising vote, was declared lost.

The President: The question before the Convention is upon
the adoption of the report of the Committee on Apportionment.

A Voice: Let it be by roll call.

Which was accordingly done, with the following result:

Those voting aye: Anderson, Atkinson. Buechler, Clough,

248 SOUTH DAKOTA DEBATES 1889

Cook, Cooper, Corson, Couchman, Craig, Culver, Da vies, Dickinson,
Diefendorf, Downing, Eddy, Edgerton, of Yankton, Fellows,
Fowles, Goddard, Hall, Harris, Hartley, Heninger, Hole, Houlton,
Huntly, Humphrey, Jeffries, Jolley, Kimball, Lee, Lyons, Matson,
O'Brien, Peck, Ramsey, Ringsrud, Schollard, Sherwood Smith
Spooner, Stoddard, Stroupe, Thompson, Van Buskirk, Van Tassel
Wescott, Wheeler, Whitlock, Willis, Williams, Williamson, Wood
of Pennington, Wood of Spink, Young, Zitka, and Mr. President.
(57).

Those voting no: Gifford, McFarland, and Sterling. (3).

Mr. Harris: I move to reconsider the vote by which the re-
port was adopted and lay the motion upon the table.

Which motion prevailed.

The President: Report of Select Committees.

Mr. Clough offered the following report:

Sioux Falls, Dakota, July 25, 1889.
MR. PRESIDENT: —

Your Special Committee to whom was referred the com-
munication from the officers of the American Sabbath Union, hav-
ing carefully examined the same and the matters therein, referred
to, beg leave to submit the following report.

That in our judgment, this Convention acting under enumer-
ated powers fixed by and contained in the Act of Congress known
as the "Omnibus Bill", have no power to change, alter or amend
the Sioux Falls Constitution of 1885. by inserting the provis on
named in said communication, nor any similiar provision, for the
reason that the power to do so is not conferred upon th's Convention
by said act of Congress.

Your Committee further recommends that the Chief Clerk of
this Convention send in writing to the Hon. Elliott F. Shepard
Gen. O. O. Howard, U. S. A., Rev. J. H. Knowles, D. D., Rev.
Wilbur F. Crafts, D. D.' officers of the American Sabbath Union,
the following communication:
GENTLEMEN: —

We, the Constitutional Convention of South "Dakota, hereby
acknowledge the receipt of your telegraphic communication bear-
ing date of July 20, 1889, recommending the insertion into the
Constitution of South Dakota of certain provisions relating to the
observance of the Sabbath Day.

We have the honor to inform you that your communication
was referred to a special committee of this Convention and said
Committee, after careful and mature consideration of your com-
munication, made and submitted to this Convention the following
report:

Your Special Committee to whom was referred the com-
munication from the officers of the American Sabbath Union, hav-

ROUTINE 249

ing carefully examined the same and the matters therein referred
to, beg leave to submit the following report:

That in our judgment, this Convention, acting under enumer-
ated powers fixed by and contained in the Act of Congress known
as the "Omnibus "Bill, have no power to change, alter or amend
the Sioux Falls Constitution of 1885, by inserting the provisions
named in said communication, nor any similiar provision for the
reason that the power to do so is not conferred upon this Convention
by said act of Congress, which said report was unanimoulsy adopted
by the Convention.

It is therefore apparent that no further action can be taken
by this Convention on your communication and the matters there-
in re "erred to.

Respectfully submitted,

E. E. CLOUGH,
S. F. HUNTLEY,
J. V. WILLIS,
SAMUEL A. RAMSEY,
CHAUNCEY L. WOOD.

Mr. Clough: I move the adoption of the report.

Which motion received a second and on reaching a vote, pre-
vailed.

Mr. Wood: I desire to move the adoption now of the report
of the Judiciary Committee, relative to the special matter referred
to it, relating to the Clerks of the Circuit Court at the coming elec-
tion.

The President : It can only be taken up by consent.

Mr. Hole: I think it is beyond our powers to take it up and
adopt it now, because other Committees have decided to the con-
trary. I would think it would be better to refer it to a special
committee.

Mr. Van Buskirk: I desire to suggest that there is some dif-
ference of opinion in that Committee, whether it is thought best
to submit a minority report I am not able to say. As far as my
own opinion is concerned I am opposed to it ; I do not think it is
within the purview of the Convention. I object to its being taken
up at this time.

The President: Having passed the order provided by the
rules, I am of the opinion that it cannot now be considered only
by suspension of the rules.

Mr. Wood: I move that the rules be suspended that the Con

250 SOUTH DAKOTA DEBATES 1889

vention consider the report of the Judiciary Committee made this
morning.

• The motion was declared lost.

Mr. Humphrey: For two days the report of the Committee
on Education and School Lands was deferred by request and if
it would be in order before we pass that head, —

The President: That is under a special order; as soon as we
reach that order of business it will be considered.

The President: Reports of Select Committees.

Consideration of reports of Select Committees.

Presentation of Resolutions and Propositions relating to the
Constitution.

Special Orders are now before the Convention.

MR. PRESIDENT: —

Your Committee on Education and School Lands, to whom
was referred Article (8) Eight of the Constitution, entitled "Educa-
tion and School Lands", having had the same under careful con-
sideration, beg leave to report the following changes' and amend-
ments necessary . to comply with the provisions of the Omnibus
Enabling Act, to-wit:

First: To insert the words "and other" in the title.
Second: To strike out in the, first sentence of Section 5 the
words, viz: "Unless, after the year A. D. nineteen hundred, two
sucessive Legislatures concur in a law otherwise directing".

Third: To insert the word ' South" bef re Dakota in Section
II.

Fourth: To insert the words, "and all lands donated for other
than educational and charitable purposes," after the word "section"
in the second line of Section 8, and we herewith report Article VIII,
with the changes and amendments aforesaid incorporated therein.
And we respectfully recommend the adoption of the amend-
ments and the submission of the Article as amended.

H. A .HUMPHREY,
Acting Chmn. of Committee.
C. G. COATS,
F. G. Young,
J. DOWNING,
S. S. PECK,
W. H. MaTsoN,
GEO. H. CULVER,
S. F. HUNTLEY.

Mr. Humphrey: I move the adoption of the report of the
Committee.

Mr. Corson: I move to strike out of the report, Amendment

CAPITOL LANDS . 251

No. 4, which is the last amendment, and to substitute for Sec.
8, as reported, the original Sec. 8, of the Sioux Falls Constitution.
The object, I understand, of the amendment seems to be to in-
clude in that provision, railroad and school and University lands;
the lands appropriated by the National Government for a capitol,
fifty thousand acres.

Now, the first point I make in this motion is, that an amend-
ment of the Constitution is not required or allowed. Under that
provision. Congress has donated to us for capital purpose's fifty
thousand acres of land, or for buildings at the capital. There is
nothing in the Enabling Act requiring that to be included in the
provision, providing for the sale of school lands; there is nothing
in our Constitution requiring it. It is an amendment which would
be like any other amendment proposed to our Constitution and it
is not made necessary by any provision of the Enabling Act and is
therefore improperly made at this time; it is not permissible, in
other words.

Second: I make two propositions, that is that it would be
injudicious at this time to include that land appropriated for the
capital buildings in the provisions relating to our school and Uni-
versity lands. We all know that the system provided for these
school and University lands is quite complicated ; that they cannot,
be sold for less than $10 per acre; that special appraisals have to
be made ; have to be sold on long time, and a great many provisions
which are perhaps proper enough as to the educational lands
so that we could easily dispose of them. This question of the
provision made for the capitol buildings is something that will
require a different treatment. It cannot be very long before
we will have a fixed place for capital and we will need buildings.
Now, "will this action be wise or judicious? Shall we require the
people of the Territory to put their hands in their pockets and
build the capitol that subsequent generations may get the benefit
of the rise pf these lands? I think not; therefore for both rea-
sons. First: That it is not permissible to make this amend-
ment, and second: That it will be injudicious to make it. I
move the amendment.

Now, in order that the Convention may fully understand it
if they will refer to Section 17 of the Omnibus Bill, they will find
in the second subdivision the following language:

That in lieu of the grant of land for purposes of internal im-

252 SOUTH DAKOTA DEBATES 1889

provement made to new states by the 8th Section of the Act of
September 4th, 1841, which act is hereby repealed as to the states
provided for by this act, and in lieu of any claim or demand by the
said states, or either of them, under the act of September 1st, 1850,
and in Section 2479 of the revised statutes, making a grant of swamp
and overflowed lands to certain states, which grant is hereby
declared is not extended to the states provided for by this act, and
in lieu of any grant of saline lands to any states, the following
grants of land are hereby made, to-wit:

To the State of South Dakota: For the School of Mines, 40,-
000 acres; for the Reform School, 40,000 acres; for the Deaf and Dumb
Asylum, 40,000 acres; for the Agricultural College, 40,000 acres:
for the University, 40,000 acres; for the State Normal Schools, 80,-
000 acres; for publ c buildings at the capital of said State, 50,000
acres; and for such other educational and chartiable purposes as
the Legis ature of said State may determine, 170,000 cres; in all.
500,000 acres.

By turning to Section 8 of the original act of our Const tution
Section 8, of Article VIII, it will be found that there is no necessity
for this amendment as these lands come within the provisions of
that section clearly. It reads: "All lands mentioned in the pre-
ceding sections". The preceding section, — Section 7 of Article VII
reads: "All lands, money or other property donated, granted or
received from the United States or any other source for a University-
Agricultural College, Normal School or other educational or char-
itable institution or purpose, and the proceeds of all such
lands and other property so received from any source, shall
be and remain perpetual funds, the interest and income of which,
together with the rents of all such land as may remain unsold, shall
be inviolably appropriated and applied to the specific objects of
the grants or gifts. The principal of every such fund may be in-
creased, but shall never be diminished, and'the interest and' income
only, shall be used. Everv fund shall be deemed a trust fund held by
the State, and the State shall make good all losses thereform that
shall occur in any manner." Section 8, which I propose as an
an amendment, is as follow : "All lands mentioned in the pre-
ceding section shall be appraised and sold in the same manner
and by the same officers and board under the same limitations, and
subject to all the conditions as to price, sale, and approval provided
above for the appraisal and sale of lands for the benefit of public
schools, but a distinct and separate account shall be kept by the
proper officers of each of such funds." Now, Mr. President,' and
: entlemen of the Convention, you will see, taking these two sections
together, all the lands that have been granted by Congress and by
virtue of this section, becoming part and parcel of this section
except this 50,000 acres that has been mentioned as for the capital
buildings. The object of this amendment is to include that 50,-
000 acres. I insist that it is not a proper amendment to make at

PUBLIC LANDS 253

this time. I further argue that it is not the object of Congress in,
making this donation that they should not be included among that
class of lands for the reason that they fixed no limitation to the
price of these lands as I undertand it, but for the other lands donated
for educational purposes they have made they limit at $10 per acre
so that they properly come within the section that I have read. I
argue therefore that the amendment should, be made to this
report and that these 50,000 acres be left? to the disposal of the
Legislature in the manner that they deem most judicious for the
buildings at the capital. I believe the Legislature can be trusted
in this manner; they will all have an interest in it to get the largest
price and make just use of the proceeds.

The amendment offered by Mr. Corson was at this point
seconded.

Mr. Humphrey: I have not, before, had any opportunity
to present to the Convention, the reasons that lead the Committee
to recommend the amendment in their report. In the first place,
they found in the Constitution, restrictions and safeguards thrown
around the lands that the state then possessed or was likely to
possess. Following in the spirit of the Constitution and the
Enabling Act, the Committee felt that they should provide the
same restrictions for these lands. The intention of the report is
to protect the lands coming into possession of the State from any
possible chance of slipping away from the people. It is well known
in the history of states, and the state no further east of ,us than
Iowa, when they had like us,, donations of land, that they were
careless in their legislation and before they were aware of their
folly and turned to see where they were, they were gone. As the
Committee understood this, and as I now understand it, the result
of these words in the Eighth Section to simply throw around these
other lands the restrictions as .to appraisal and approval of sale.
Further than that, as we understand, and as we find in the Omnibus
Bill, other lands than those in Section XVII was donated to the
State, including large lands for the penitentiary and .such other
institutions that are other than educational lands. The clause was
to protect the people, not to force the burden upon them to build
the capitol by taxation. We are not likely to be called upon to
build a capitol for South Dakota for five years, judging by the
innumerable contestants. This next year they will vote for tem-
porary location of the capital, then after that the two largest places
will vote. We will not see this election contest settled inside of
five years. It is a fair presumption that many of these lands will

254 SOUTH DAKOTA DEBATES 1889

be of the value of ten dollars per acre even at that time, and even
then you would not have the right to dispose of these lands to
build the capitol, but under the Constitution, all that would be
necessary would be to submit to the people at the next election,
and if they desire to sell the lands for less money at that time to
build the capitol it will be within their power to do so. It seems to
your Committee that we should assist in putting these restrictions
and safeguards around these lands till after that time.

Mr. Davies: I would ask if the words "educational and char-
itable" would not cover the penitentiary lands and other lands re-
ferred to by the gentleman from Faulk? The question in my mind
is whether that clause did not cover all the lands.

Mr. Humphrey: I would say that lands donated for educa-
tional and charitable institutions are generally spoken of as "school
lands", "Agricultural College lands".

'Mr. Hole: I wish to raise this point. Under the provision
of that part of the Constitution as submitted by the Committee,
it provides that these lands shall be appraised and sold in a certain
way. It provides further that this shall be a permanent fund;
that nothing but interest is to be used, as I understand it. The
intention of giving 50,000 acres of land to build the capital buildings
would hardly be consistent with the general endowment fund. In
the proposed part of the Constitution, as submitted, the 50,000
acres will be sold and that monev kept as an endowment fund for
the capitol, that was not the intention. The intention was to sell
the land and build the buildings with it, not to endow the building
of the capital

Again, the fact that we do not include it and put it under the
control of the school department, but leave it to the Legislature
does not force the Legislature to sell it. I take it that the Legis-
lature will be as careful and as honest and particular about taking
care of the funds that is left for the State of South Dakota, as any
body of men that can possibly be called together or elected by the
people and the mere fact that we leave this to our Legislature who
are to use their wisdom in raising the funds to build State buildings,
does not force us to sell it at an inadequate price or at inopportune
time.

Mr. Young: The gentleman who has just had the floor, I
think, is laboring under a false impression as to the amendment
desired by the Committee on Education and School Lands. The

CAPITOL LANDS 255

amendment desired is incorporated in Section 8, and Section 8 does
not provide for building up any permanent fund at all. Section
8 has reference simply to the manner of selling, the Board for ex-
ecuting the sale, the price and the approval of the sale and the ap-
praisal for the sale and nothing at all about the securing of a fund
as a permanent fund which is incorporated in Section 7 and further,
I think we are not quite as intelligent upon this question as a body
as we ought to be because this point has not been brought up.

In the previous section, Section 12,1 find that Uncle Sam has
been still more generous to us in his endowments for the public
building fund. He there contributes another little lot of fifty
sections, making eighty two sections in all that this State is endowed
with for a public building fund.

This makes a large fund and will make therefore the piling up
of the fund more rapid, even if very strict safeguards are thrown
around them; and as has already been, intimated, our permanent
capital site may not be determined on for the next five years.
There will be no necessity of any work on a large capitol building,
a building that ought to be an ornament to our State, for some
time, in any event. I do not think that we ought to be in any un-
seemly haste towards starting a capitol building here that is to do
for all time

Now, Mr. President, in reference to the disposition of these
safe-guards, we will have to have some agents for the State for the
purpose of disposing of these lands for the application of the funds.
It seems to me the Board to whom it is proposed to intrust these
lands in the amendment recommended by the Committee on Edu-
cation and School Lands, is just exactly the Board that is best
adapted for this purpose. They are intelligent in these matters
because they will have had experience disposing of other lands
and caring for all such matters. If our amendment is rejected in
regard to this matter it will simply amount, not only to throwing
away all of these safe-guards, but to the appointment of another
Board, which will be an element of extra expense. As to the point
of our lack of authority on the part of the Committee in introduc-
ing this amendment at this place you will see by reference to the
Omnibus Bill that these endowments, both of them for public
buildings, are sandwiched in between the endowments for other
purposes. You will see in the latter part of Section 17, that the
ntention was plainly the same in regard to ajl lands on the part

256 SOUTH DAKOTA DEBATES 1889

of Congress for it says: "All the lands granted by these sections,
including the several grants for the several purposes shall be held
and appropriated and disposed of exclusively for the purposes
herein mentioned, in such manner as the Legislature for the respec-
tive States may severally provide" as we have thrown safe-
guards around these and other separate endowments, and why
should we separate this one single endowment out and put it in
condition where t will likely be sacrificed. It seems to me a very
important subject and is one in which we must make haste slowly.
Mr. Woods: It seems to me that there can be but little ques-
tion about what our actions can be. There are some very radical
amendments for instance, — the report of the Committee calls for
striking out a section and the words "and, after the year 1900 two
sucessive Legislatures concur in a law otherwise directing". To
strike out these words is not necessary. We have no authority
to strike these words out of the Constitution at all ; I think that
will be apparent to any gentleman of the Convention upon close
and careful thought for a few minutes. Then, inserting of the words
"and other" in the title is as radical an amendment as striking out
the words from Section 5, — something we have no authority to
do. I do not remember whether the amendment covers all the
proposed amendments in Constitution here or not. The insertion
of the words in the fourth subdivision of the report, "and all lands
donated for other than educational and charitable purposes" is
something we have no right to place in the Constitution as an amend-
ment. It is not necessary, in other words, to carry out the pro-
vision of the Omnibus Bill that these amendments be made, there-
fore we are without authority to make them. It seems to me,
these propositions are clear and plain. The argument that it
would be desirable to place these amendments in the Constitution
is not an argument which reaches the difficulty. It may be desir-
able to place them in the Constitution, it is not necessary to dis-
cuss that; we find ourselves without power to make the proposed
amendment. It is not any answer to the argument that it would
be wise to place them there within the purview of the law governing
the lands donated for capital purposes for the reason sometime in
the future it would cost the creation of some Board and thus entail
some expenses that might be avoided. We find ourselves not in
the possession of that power to pass amendments under the Con-
stitution. This Constitution has been ratified and adopted by the

THE CAPITOL LANDS 257

people and we are authorized by Congress to make certain amend-
ments and changes. These are merely amendments and not
changes; now we can enact only such ammendments under
the provisions of the Omnibus Bill as are necessary to carry
into effect the provisions of the Omnibus Bill. I think the gentle-
men of the Convention will do well to consider the absence of
power in voting the proposed amendment. If we can make
these amendments I submit the proposition that we can throw
away the Constitution of 1885 and make a new one. If we have
sufficient power to make these proposed amendments, — not
changes ; they are amendments — we have that power — we have the
power to make a new Constitution entirely and call it amendments.

Mr. Corson: I desire to call the attention of the Convention
to Section llth to show that it was not the intention of Congress
that these capital lands should be included in the educational lands
for the purposes of the State. Section llth of the Omnibus Bill
reads, "That all lands herein granted for educational purposes
shall be disposed of only at public sale at a price not less than $10
per acre, the proceeds to constitute a permanent school fund, the
interest of which only shall be expended in the support of said school
It will be seen in speaking of educational lands they use the words
"that they shall not be sold for less than $10 per acre", but when
they come to speak of the other lands they use no such terms and
that makes the proposition of Mr. Woods stronger, — that we are
not allowed to make these amendments. But we cannot find any
provision in the Omnibus Bill that would warrant us. It seems to
me that this Convention ought to favor this second amendment.

Mr. Sherwood: In regard to our powers to insert this amend-
ment proposed, it seems to me this other amendment in striking
out the words "unless after the year 1900 two successive Legisla-
tures concur in a law otherwise directing" would be unnecessary
to conform with this section of the Omnibus Bill, that"all\ands
shall be disposed of only at public sale -and at a price not less than
$10 per acre," — I do not hardly see how that amendment can stand
and yet the Legislature have power after 1900.

Mr. Humphrey: I wish to call the attention of the Convention
to the fact that by inserting the amendment proposed in the 8th
Section does not throw around these lands the restrictions con-
tained in many other sections relating to the permanent fund. It
is only a restriction in regard to the rights- of appraisal and ap-

258 SOUTH DAKOTA DEBATES, 1889.

proval pertaining to the same only. We find that the Constitution
has its own safeguards and protects all the lands that the State has
cognizance of and when it is claimed that the Legislature will take
necessary care of these lands we have only to judge the future by
the past and if the Convention which framed this Constitution has
that same confidence in the Legislature, why did they place th se re-
strictions upon these lands? The restrictions should be placed in
the Constitution. This having been injected as I have said by this
bill it will be a portion of our duty to guard and protect it the same
as other public lands. In regard to the amendment of the 5th
Section, to which your attention has been called by Mr. Sherwrood,
under the Constitution you would be liable and would violate the
provisions of the Omnibus Bill. The Omnibus Bill states that
these lands should never be sold for less than $10 per acre; would
you empower the Legislature after a certain year to sell them for
less? In regard to the amendment to the title, I would say this,
that we depended upon amendment Number Four. If that were
enacted, that necessarily amended the title if not concurred in
by the Convention that would be striken out.

Mr. Corson: I move to strike out of the report amendment
number four and substitute for Section 8 as reported, the original
Section 8 of the Sioux Falls Constitution.

Mr. Dickinson: It seems to me, the question turns on this
point: In tne first place whether the Committee on Education
and School Lands has not the right to extend its jurisdiction so
that it will include the capital lands and whether in an atricle of
the Constitution providing for Education and School Lands we
can arrange for capital improvements. I have been surprised that
the Chairman of the Committee makes this report. He has been
one of the greatest sticklers for preserving intact the Sioux Falls
Constitution. In this matter he presents a most decided change of
front that has been noticed yet on the floor of this Convention

Mr. Humphrey: I would say that I am aware that I am open
to that charge. I had myself advised that this matter be turned
over to the Schedule Committee but many thought that it would
be the proper place for it to be brought before this Convention.

Mr. Woods: I propose as an amendment to the amendment,

THE CAPITOL LANDS 259

that the words "and others" in the first sub-division of the report
be stricken out of the report.

Which motion received a second.

Mr. Young: Now we are by our Constitution to throw safe-
guards and a very many of them around all public lands we had
then or that the State had any expectation of. These lands were
given to the State by this Enabling Act, and it is only natural to
suppose that had the Constitutional Convention of 1885 been aware
of the generosity of the general government they would have put
in the provision that the Committee proposed.

The President: The question before the Convention is upon
the adoption of the report of the Committee on Education and
School Lands to which Mr. Corson proposed the following amend-
ment, to strike out of the report, amendment number four, and to
substitute Section 8, as reported by the Sioux Falls Constitution
in lieu of Section 8, as reported by the Committee. Mr. Woods
proposes an amendment to the amendment by striking out the
words "and other." As many as are in favor of the amendment
proposed by the gentlemen from Pennington say aye ; the ayes
have it. The motion is now upon the amendment as amended.
Mr. Sterling moves that the report of the Committee on Education
and School Lands be amended so that Section 9 of Article VIII
shall read as follows: "The lands mentioned in this Article may,
under such regulations as the Legislature may prescribe, be leased
for periods of not more than five years in quantities not exceeding
one sectkm to any person or company. All rents shall be payable
annually in advance, nor shall any lease be vaild until it receives
the approval of the Governor."

Mr. Sterling: I move the adoption of the amendment.

Motion received a second.

Mr. Wescott: I move that the motion be laid upon the table.

Which motion received a second and prevailed.

The President ; The question is upon the report of the Com-
mittee as amended.

Mr. Woods: Before the motion is put, I desire to modify
what I have said, — what I have heretofore said, concerning the
proposed amendment of Section 5 of Article VIII. I am inclined
to think what I said before was said without due consideration.

260 SOUTH DAKOTA DEBATES 1889

The question of the adoption of the report of the Committee,
upon reaching a vote, was declared by the President to be duly
adopted.

The President: Under the Special Order the consideration
of the report of the Committee on Name and Boundaries will be
the next order of business.

The Clerk reads the report as follows ;

(Here insert it.)

The President: The Chairman of the Committee on Name
and Boundaries moves the adoption of the report.

The Convention, by a unanimous vote, adopted the report
of the Committee on Name and Boundaries.

The President: The second report made by this Committee
on Seat of Government, is now before the Convention.

Clerk reads the report as heretofore made:

(Here insert it.)

The Convention, by unanimous vote adopted the report of the
Committee on Name and Boundaries, the second sub-division,
Seat of Government.

The President: That finishes the Special Order. What is
the further pleasure of the Convention ?

Mr. Clough: At the request of the Chief Clerk, I introduce
this resolution:

WHERAS, in the records of this Convention the words "Chief
Clerk" and "Secretary" are used interchangeably,

RESOLVED, that when so used, that they 'shall be deemed to
pertain to the same person and office, — that of Chief Clerk.

The President : The resolution will be referred to the Committee
on Rules.

Mr. Spooner: In order to facilitate business it has been sug-
gested that we have a session tomorrow morning. I move that the
rules be suspended and that when we adjourn it will be until 9
o'clock tomorrow morning.

Mr. Davies: Have we not already said we would have a
session this evening?

The President: It is moved that the rules be suspended and
when we adjourn, it be until tomorrow morning at 9 o'clock.

This motion prevailed.

Mr. Clough: I move that we instruct the Committee on
Schedule to bring us a report.

SCHEDULE AND ORDINANCE 261

Mr. Jolley: I move an amendment, — that the gentleman
from Codington have a club and be instructed to make the Commit-
tee bring it.

Mr. Humphrey: This is near the close of our session; we
are anxious to expedite the work, — the work that is left, — the
principle part of which pertains to the Committee on Schedule.
I renew the motion of the gentleman from Codington that they be
instructed to report tomorrow morning at 9 o'clock.

This motion received a second and on a division of the House
prevailed by a vote of 31 ayes and 26 noes.

Mr. Humphrey: I move you the report of the Commmttee
on Schedule be made a special order tomorrow morning at 9 o'clock.

Mr. Jolley: That is pretty good, — making a special order
of something you are not in possession of.

Mr. Willis: I second the motion that we make it a special
order.

Mr. Corson: There are matters in that report that cannot
be inserted until this Committee from Bismarck reports.

Mr. Hole: There has been a special call for the report of the
Committee on Schedule and Ordinance. I will explain that the
Committee has been at work pretty nearly night and day. From
the fact that they have to take up the work after these Committees
have reported. We do not want to report, and you do not want
any report that is not right. We expect to work all night at that
and get it here tomorrow morning. I think it is unfair and un-
courteous to pass this kind of a resolution at this time. You
know naturally as well as you want to know, that this Committee
want to report just as quick as they can. We are going to report
tomorrow morning if possible, and if it is not possible it will not
be here. You do not want a faulty report. This question referred
to the Judiciary Committee two weeks ago that has just come in
from the Committee. We had to work after all these Committees
came in. I think you will find that you have been just a little bit
hasty in this matter. This Committee wants to report and get
away just as badly as any gcntkman in this Convention. This
Committee has worked more hours than any other Committee in
this Convention. It strikes me just a little bit previous to make
this kind of a motion.

The President: The motion before this Convention is that
the report of the Schedule Commit tin- be made a special order

262 SOUTH DAKOTA DEBATES 1889

for tomorrow morning at nine o'clock. I will say that the Com-
mittee on Schedule have two reports in and the Convention has the
right to make them the special order for tomorrow morning at
9 o'clock.

The motion prevailed. f- >

Mr. Fellows: I move the reconsideration of the motion or-
dering the Committee to report tomorrow morning at 9 o'clock.

This motion prevailed; the motion was reconsidered.

The President: The question before the Convention is, shall
the Committee on Schedule and Ordinance be instructed to report
tomorrow morning at 9 o'clock.

Mr. Clough: After talking w7ith the Committee I think we
understand it a little better. I will make another motion, that the
Committee on Schedule be requested to report next Thursday
afternoon. I make that as an amendment that they be requested
to report next Thursday afternoon. These gentlemen claim that
they cannot report until the Committee get back frcm Bismarck.
I would like to have these Bismarck men get home next Thursday.

Mr. Hole: I would say that we want to report before that
time. We expect to report tomorrow morning ; we expect to make
a partial report.

The President: The question is upon the amendment of the
gentleman from Codington, that it be made a special order for next
Thursday.

Mr Willis: I move to lay the amendment on the table.

Which motion received a second and duly prevailed.

The President: The question before the Convention now
is, shall the Committee on Schedule and Ordinance be instructed
to report tomorrow morning at 9 o'clock. jt^

Mr. Humphrey: I wish to ask a question. I am under the
impression that our duty is simply to incorporate the agreement
reached by the gentlemen of the Commission and if so, w^hat have
the Schedule Committee got to do with it?

Mr. Jolley: It is by Ordinance.

Mr. Hartley: I understand we have nothing to do with the
report from Bismarck; it is for this Convention to put it through.
It has never been referred to our Committee. We can report
tomorrow morning.

The President : The question is , shall the Committee on Sched-
ule be requested to report tomorrow morning.

ADJOURNMENT 263

The motion reaching a vote, the President declared the motion
lost.

On motion the Committee adjourned until tomorrow morning
at 9 o'clock, July 25th, 1889.

TWENTY-THIRD DAY.

Sioux Falls, S. Dak., July 26th, 1889.
Nine o'clock A. M.

Pursuant to adjournment, Convention re-assembled with
President Edgerton in the Chair.

Prayer was offered by Rev. Mr. Lee as follows:

Most holy, All Wise and ever to be adored God, Ruler of the
Armies of Heaven, and the dwellers upon earth, before whom angels
and arch-angels bow in reverence and godly fear; we thank Thee
that Thou hast made us but little lower than the angels, and en-
dowed us with intellectual faculties whereby we can take a retro-
spective view of the past, consider the present, and by a lively faith
anticipate the joys to come. Great God, as we have met to consider
the greatest question that may come before this Convention we ask
for strength mentally, physically, and morally that we may do
right by our constituents and the inhabitants of South Dakota with-
out fear or favor. Oh God, bless all our loved ones at home, ward
off disease and accident, let nothing thwart our pathway that shall
lead us astray, and finally save us all in Heaven where we may
enjoy each other's society, refer to the acts of this life well done
before, and after we are a million years old. We ask all in the name
of Christ, our Mediator and Redeemer,

AMEN.

The Clerk reads the Journal of the preceding day.

The President: I do not know that I understand fully the
order made yesterday by the Convention as to the purpose of this
morning's session; I shall decide unless objection is made that this
morning's session is for the purpose just as named in the motion for
the session this morning, and that the afternoon's session will take
place as usual with the regular order of business; if I am correct
in that, the first business for the consideration of the Convention
is the report of the Committee on Schedule.

Mr. Van Buskirk: I asked leave yesterday to sulmit a report

266 SOUTH DAKOTA DEBATES 1889

of the minority of the Judiciary Committee upon the question of
the power of this Convention to prepare for the election of a Clerk
of the Circuit Court. While I would have been glad to have deferred
it a few minutes longer, as some members of ihe Committee who are
not present desire to sign it, I will say I do not desire to discuss this
question now until the Schedule Committee report as they may
agree ; otherwise I wish to be heard on this report.

The Clerk reads as follows:
MR. PRESIDENT: —

The undersigned members of the Judiciary Committee would
respectfully represent that we have carefully examined the Sioux
Falls Constitution and the Omnibus Bill, and we are unable to find
any provision or authority in either by which this Convention can
provide by ordinance or otherwise for the election of any other than
State officers at the election held for the adoption of the Consti-
tution. That neither the Clerk of the Court, Register of Deeds, or
any other of the County officers are by the said Constitution or the
Omnibus Bill, considered as State officers, nor have thev been treated
as state officers in the administration of the affairs of government,
but especially does the said Constitution treat and consider these
officers as county officers and provides for their election at the next
general election after the admission of the State intothe Union. We
therefore beg leave to dissent from the opinion of the Committee
heretofore submitted.

S. B. VANBUSKIRK,

GEO. C. COPPER,
H. F. FELLOWS,
THOS. STERLING,
SAMUEL A. RAMSEY,
H. W. EDDY,
A. J. BERDAHL.

The President: Are there any further reports from Standing
Committees?

Mr. Stroupe: I have a report from the Committee on Name
and Boundaries and Seat of Government to which was referred the
resolution of Mr. Goddard, of McCook County, relative to the Sev-
enth Standard Parallel.

The Clerk reads the report referred to as follows:

Sioux Falls, July 26, 1889.

Your Committee on Name, Bounadries and Seat of Government,
to whom was referred the resolution presented by Mr. Goddard,
of McCook County, relative to the Seventh Standard Parallel, have
considered the same, and beg leave to report, that in the opinion of
your Committee the Constitutional Conventions of North and South

PUBLICATION OF CONSTITUTION 267

Dakota are not authorized by the Omnibus Bill to determine what
constitutes the true Seventh Standard Parallel. We therefore
respectfully recommend that no action be taken on the resulution.
Respectfully submitted,

M. P. STROUPE, Chmn.
S. A. WHEELER,
JONATHAN KIMBALL,
W. T. WILLIAMS,
E. G. EGERTON,
WM. VAN EPS.

The President: What will you do with the report?

Mr. Stroupe: I move that we adopt the report.

The motion prevailed and the report was declared adopted.

The President: A matter went over yesterday and has not
been adopted yet ; that was the report of the Committee on Printing
with reference to the publication of 200,000 supplements containing
the Constitution. Is the Convention ready for the consideration
of that report?

Mr. Sherwood: I move an amendment to the report, that
in the place of the amount of 10,000, shall be printed in German and
10,000 in the Scandinavian language, it shall read tw:enty thousand
be printed in each.

Mr. Zitka: I move as an amendment that ten thousand copies
be printed in the Bohemian language.

The President: The gentleman from Clark moves an amend-
ment to strike out "10" where it occurs and insert the word "twenty"
with reference to the publication of this in the German and Scan-
dinavian languages ; and the gentleman from Bon Hcmme proposes
an amendment to the amendment by adding thereto ten thousand
in the Bohemian language ; is the Convention ready for the question ?

Mr. Sterling: I wish to say a word on this proposition in
reference to what the Committee had under consideration; it was
proposed in Committee that the distribution of these copies of the
Constitution be as newspaper supplements; we estimated the num-
ber of newspapers that would probable convey these copies to the
people speaking those languages, the Scandinavian and the German
and allowing the largest possible estimate we could figure it out that
there would be more than ten thousand conveyed in that way to
the Scandinavian and Germans, and that that was the reason for
making the amount ten thousand in each case. But if there are
others who are better informed as to the number who will be rea< bed

268 SOUTH DAKOTA DEBATES 1889

in this way through the newspaper supplements/ — the people speak-
ing those different languages, I suppose the Committee would not
object; I wished simply to state that for the consideration of the
Convention.'

The President: The question before the Convention is upon
the adoption of the amendment to the amendment, that ten thous-
and copies be printed in the Bohemian language.

The motion prevailed and the amendment was declared so
amended.

The President: The motion now recurs upon the amendment
as amended.

The motion prevailed and wras so declared by the President.

The President: The motion now recurs on the report as
amended; as many as are of the opinion that the report as
amended be adopted, — say aye.

The President: The ayes have it; the report as amended is
adopted.

Mr. Wood: I understood the chair to announce that this
meeting was called for the purpose of considering the report of the
Schedule Committee; I do not so understand the porceedings of
yesterday; in order to bring the matter before the Convention,
I move you, Mr. President, that the report of the Committee on
Judiciary relative to the right of the Convention to provide for
Clerks of the Circuit Court, be now considered.

The President : It is moved by the gentleman from Pennington
that the Convention proceed to the consideration of the majority
and minority report upon the powers of the Convention to provide
for the Election of Clerks of court. Are you ready for the question ?

Mr. Van Buskirk: There are some of the members of that
Committee who are engaged this morning on other matters in
committee ; I think they would desire undoubtedly to be present ;
I would therefore move as amendment that it be postponed until
afternoon, so they might be heard on this matter.

The President: The way to reach that is to vote it down;
as many as are of the opinion that the motion prevail say aye. I
am unable to determine. As many as are of the opinion that we
now proceed to the consideration of the majority and minority
report of the committee relative to the Circuit Court Clerks will
rise and stand until counted.

THE AUSTRALIAN SYSTEM 269

The President: The motion is lost. I will proceed then under
the order of the Convention.

Presentations of Communications and Petitions.

Mr. Spooner: I have a petition to put m from the legal voters
of Kingsbury County with relation to a modified Australian system
of voting. (Sent to desk of Clerk.)

Unfinished business of preceding day?

Reports from Standing Committees? I will ask the Clerk to
read the list of Standing Committees to see how many Committees
have still reports that have not been presented to the Convention ;
and if the Chairman will announce as the list is read whether they
have any further reports to make during the Convention.

The President: Under the special order, are the two reports
or partial reports from the Committee on Schedule; first, the report
upon Minority Representation.

The Clerk reads the report as follows:

Sioux Falls, S. D., July 24, 1889.
MR. PRESIDENT: —

Your Committee on Schedule and Ordinance to whom was
referred Article XXV of the Constitution, entitled, "Minority
Representation" having had the same under consideration, beg
leave to report that po changes or amendments are necessary to
comply with the provisions of the Omnibus Enabling Act.

And we herewith report Article XXV as found in the Consti-
tution, and respectfully recommend the resubmission of the same.

SCH EDULE AND ORDINANCE COMMITTEE,

By L. H. HOLE, Chairman.

The report by vote of the Convention, was adopted.
The President: The next report for our consideration is the
report on Prohibition.

The Clerk reads the report as follows:

Sioux Falls, July 24, 1889
MR. PRESIDENT: —

Your Committee on Schedule and Ordinance, to whom was
referred Article- XXIV of the Constitution, entitled, "Prohibition,"
having had the same under consideration, beg leave to report that
no changes or amendments arc necessary to comply with the pro-
visions of the Omnibus Enabling Act.

And we herewith report ArtiK e XXIV as found 'in the Con-
stitution and respect fully recommend the re-submission of the same.
SCIIK oru-: AND OKiHXAxrK COMMITTEE
Rv L. 11. I IOI.K. Chairman.

270 SOUTH DAKOTA DEBATES 1889

The President: The Chairman of the Committee moves the
adoption of the report ; is the Convention ready for the question?
The report was declared adopted by the President.
The Clerk under direction of the President, reads the report of
the Committee on Revenue and Finance, as follows:

Sioux Falls, Dakota July 24, 1889.
MR. PRESIDENT: —

Your Committee on Revenue and Finance, to whom was re-
ferred Article XI entitled "Revenue and Finance", have considered
the same and have compared said Article XI with the Sioux Falls
Constitution and the Act of Congress known as the "Omnibus
Bill", and have instructed me to report the following as Article
XI of the Constitution and that the same is in accordance with the
Sioux Falls Constitution and the changes thereto authorized by the
Omnibus Bill.

W.H. GODDARD, Chmn.
C. A. HOULTON,
JOSEPH ZITKA,
C. J. B. HARRIS,

A. O. RlNGSRUD,

L. T. BOUCHER,
WM. VAX EPS,

Committee.

The President: The Chairman of the Committee moves the
adoption of the report; are you ready for the question?

The report was, by the President, declared adopted.

The President: The resolution of the Judiciary Committee
concerning the Circuit Clerks, is next under the special order; what
is the pleasure of the Convention ?

I would state for the information of the members of the Con-
vention who were not present a short time ago, it was moved that
we proceed to the consideration of the majority and minority
report of the Judiciary Committee on election of Clerks of Court ;
the Convention refused then to consider the question; it is now
reached under the special order,

Mr. Jolley: Was the report made a special order? I find it
here upon the desk, that is all I know; the motion was made to
refer back to that order of business yesterday and the Convention
refused; do I understand that it was made a special order this
morning?

The President: I am informed that it was not made a special
order.

The President: The next I have of the reports not acted

CLERKS OF CIRCUIT COURTS 271

upon is the report of the Committee on Legislative Department.

The Clerk reads the report as follows: (Here insert it).

The President: The Chairman of the Committee moves the ad-
option of the report ; what is your pleasure ?

The report was, by vote of the Convention, adopted.

The President: What is the further pleasure of the Conven-
tion? We have adopted all the reports I believe except the report
of the Committee on Judiciary, in which there is a majority and
minority report with reference to the elections of Clerks of Circuit
Court and the report of the Committee on Schedule and Ordinance,
which the Chairman announces that they are not ready this moment
to make.

Mr. Dickinson: I move we take up the proceedings of the
report of the Judiciary Committee. Motion seconded.

Mr. Jolley : I object ; we cannot refer back without unanimous
consent.

Mr. Wood: This comes up in regular order.

Mr. Jo ley: The order is passed.

Mr. Wood: It was moved to take it up out of its order; the
report comes in in its regular order.

Mr. Jolley: That order is passed, Mr. President.

The President: The order Consideration of Reports of Stand-
ing Committees has passed ; I called it and there was no response.
Then I proceeded to the special order which we have usually taken
up after the regular order has been passed. I think the objection
is well taken ; but by two-thirds vote it may be taken up at tl is
time, that the rules may be suspended and the order taken up and
unless otherwise directed by the Convention I shall decide that in
order to carry this, it is necessary that two-thirds vote be in the
affirma ive. As many as are of the opinion that we proceed tJ
consider the majority report of the Committee on Election of Clerks
of Court say aye. Call a divisio •>..

A standing vote was accordingly taken and resulted as follows:

The President: The ayes are 26, the noes are 23 ; the vote does
not prevail ; the rules are not suspended.

Mr. Hole: By some oversight I think the substitute report
of Article XXVII has not been adopted by the Convention, in re-
gard to the compact with the United States. I suppose it will be
necessary to return to that order of bus'nes . I call it up.

The President: Chairman of the Committee on Schedule and

272 SOUTH DAKOTA DEBATES 1889

Ordinance moves the rtles be suspended in order that the Convent'on
may consider the report made by the Committee on Schedule and
Ordinance, with reference to a compact with the United States ; are
you ready for the question?

The motion on reaching a vote, the President declared "The
ayes have it ard the rule h suspended".

The Clerk read the report.

Mr. Lee: I move the adoption of the report.

Which motion prevailed and the motion was declared adopted
by the President.

Mr. President: I will state for the information of the members
who were absent that my understanding of this morning's session
was that it was a special session to dispose of the business brought
before it that the afternoon session, commencing at two o'clock was
the regular session of the day. I stated that that was the mation as ' o
the order of the Convention. If I am correct we proceed at our
regular routine work at two o'clock this afternoon. What is the
further pleasure of the Convention?

Mr. Dickinson: I move we do adjourn

Mr. Hole: The Committee on Schedule is ready to report.
If it is in orde • now we will hand in our report. I was in doubt
as to whether it is in order.

Mr. President: My own interpretat'on was that we met or
that specific purpose, that the report of the Committee on Schedule
might be made this morning.

Mr. Hole: The Committee is ready to report.

The President: Is objection made to receiving the report of
the Committee on Schedule and Ordinance? It will be received
if no objection is made.

Mr. Van Buskirk: I understood that there was a mot' on before
the house to adjourn. I was desirious that this report be on the
table of all the members, but I think perhaps we will get along about
as fast if we look these over carefully. I would move that we ad-
journ until two o'clock this afternoon, at the regu'ar time.

Received a second.

Mr. Hole: Bear with me a moment. The printed report as
on the desks has been amended by the session this morning and it
might be well to read that over and call attention to those amend-
ments and mark them and to that end I .suggest that it be read

SCHEDULE AND ORDINANCE 273

first and the amendments marked and you can study it at your
leisure.

Mr Van Buskirk With the consent of the second and with the
privilege of renewing the motion to adjourn, I have no objection
to that.

The Clerk here reads the report of the Committee on Schedule
and Ordinance, as amended, according to the report of the Chairman
of the Committee.

Mr. Van Buskirk: I renew the motion to adjourn.

Which motion prevailed.

The Convention stood adjourned until two o'clock this after-
noon,—2 P. M., July 26th 1889.

Two o'clock P. M. Convention reassembled pursuant to
adjournment.

The President: The Convention has under Consideration the
report of the Committee on Schedule and Ordinance.

Mr. Hole: Do we undertsand that this is the first order of
business? Is this an adjourned meeting or the regular meeting?

The President : I understood this morning that the Convention
adjourned last night for a specific purpose to this morning, but upon
further examination of the Journal I am persuaded that it was
adjournment till nine o'clock this morning. I think the session
commenced this morning at nine o'clock of this day and that this
is part of the morning session.

Mr. Hole: Then if I understand the report of the Schedule
Committee is properly before the Convention. I would move its
adoption ami wish to add to that motion a few remarks just now.
We have entered the danger field and it is with much timidity that
I stop upon this thin ice for I know the water is deep. But in sub-
mitting this report 1 refer with no little pride to the work of your
Committee. On the superstructure that is to bear us safely ovef
the- period of change from a grand Territory to a grand State.
Whether or not we have- well builded, time alone can tell; we may
have left out a brace here or failed to tighten a burr there which
may result in weakening our structure. But whatever misfits

or mistakes the future may develop \\i\\ be found to be the out-
growth of our peculiar and ditficult environment with powers
abridged beyond all parallel or precedent in the history of the Con-
stitution. Our task has been to dove-tail together two^dist iiu.t.
mechanisms far separated as to political sixe. It will not be Mir-

274 SOUTH DAKOTA DEBATES, 1889.

prising then if some judicial fillings may be found to be necessary
to perfect the symmetry of our work. Be this as it may, your
Committee will ever remember having worked in harmony at t'mes
on different lines but to one common end and looking for one com-
mon light and your Committee believes, in submitting this report,
they furnish you for your consideration a safe .chart to statehood.
We agree upon all matters but one ; wherein we do agree we ask that
no radical change be made without careful and painstaking con-
sideration by this Convention, as this Schedule which we have sub-
mitted is the outgrowth of much deliberation and thought, and
wherein we differ we ask that there may not be haste. But may
every delegate carefully consider the responsibility and possibilities
of his vote and act as becomes the dignity and importance of this
subject. May it be put in the minds of every member of this Con-
vention to ask wisdom from that unerring source to guide us to
rightly consider our duty to our God, to ourselves and to the great
State to be; Mr. President, I move the adoption of the report.

.Mr. Peck: I beg to move, seconded by Mr. Williams, the fol-
lowing resolution, that Section 7 of the report of the Committee
on Schedule and Ordiannce be amended by adding the following
thereto:

Amendment sent to the desk of the Clerk.
Mr. Peck: I do not propose, Mr. President, to occupy any
time at all in discussing this resolution that I have just submitted;
That amendment we offered has so fully been gone over by every
member, and I think so fully understood, it would be a piece of pre-
sumption on my part to expect to enlighten any of the members.
I am simply acting as representative of the people who sent me
here. I was instructed to get as near the Australian system of
voting as I could. That is not the Australian system ; I do not
claim for it perfection, it is the principal we are after and if the
principle of it is adopted we can then go into Committee of the
Whole and submit the revision of the resolution, and as I will ever
pray. I shall simply confine myself to correcting any person who
has mistaken any of the provisions of this resolution ; I shall simply
claim in the end, the right to explain them and no more ; I want no
more.

The President: I would ask the gentleman if he prefers to
take it up now ? I suggest to the Convention I think a more proper
and parlimentary method would be to read it section by section

SCHEDULE AND ORDINANCE 275

and let this amendment be made as we reach the section. Unless
I am directed otherwise, I shall direct the Clerk to read it section
by section.

Mr. IVrk: As long as n y motion stands there I have no ob-
jection.

Mr. Van Buskirk: Inasmuch as there are two reports, I would,
move that the consideration of the report of the Schedule Committee
and the two reports of the Judiciary Committee be taken up and
considered together.

Motion received a second.

The President: If I remember this report from the Judiciary
Committee, it was only their opinion as to a legal question — pos-
sibly it may be a recommendation as to the election, — I do not
remember.

Mr Sterling: The Committee did express it as their opinion
that the Convention had the power to provide for the election of
Circuit Clerk and recommended that to the Schedule and Ordinance
Committee and that a provision to that effert be put into the
Schedule and Ordinance. That was the report of the Judiciary
Committee on that question.

Mr. Jolley: By adopting or rejecting either the majority
or the minority reports we can decide one thing or the other and
when the Schedule is amended if the majority of this Convention
are in favor of electing the Clerk this fall, then it becomes a part
of the rule adopted.

Mr. Wood of Pennington: I would suggest there is a care-
fully prepared amendment.

The President: I think that covers the whole ground.

Mr. Van Buskirk: All I care for is simply to expedite the
business of the Convention.

Mr. Wood: I would suggest that we now have the amendment
at this time, that would present the question in the proper light
before the Convention.

The President: It seems to me the more regular way of
reaching these amendments would be in Committee of the Whole,
reading it section by section; otherwise we will never get through
to the consideration of the report of the Schedule Committee.
Unless otherwise directed by the Convention the Clerk will read
section by section and when the amendment pertaining to any
section, as it is read, the amendment can be offered. The gentle-

276 SOUTH DAKOTA DEBATES 1889

man from Hamlin presented his amendment to Section 7 when
we read Section 7, I will instruct the Secretary to pause long enough
that it may be heard and considered by the Convention.

Mr. Fellows: I move that we go into Committee of the Whole
upon consideration of the report of the Committee on Schedule.

Which motion did not receive a second..

The President: Proceed with the reading.

Clerk reads Section 1.

Mr. Young: I move the adoption of this section.

The President: There is pending a motion which"" is the
adoption of the whole report by the Chairman of the Committee.

Mr. Young: The motion is withdrawn.

Mr. Hole: As we will strike a place directly where we cannot
agree but will diverge into a long discussion, if it will facilitate
matters I will change the motion to adopt it section by section and
then we will clear this up as we go. I will, with the consent of the
second withdraw the motion to adopt the report as a whole.

The President: The question before the Convention is, shall
Sec. 1 be adopted by the Convention.

This question on reaching a vote, the' President declared the
result to b: as follows: "The ayes ha\ e it Sec. 1 is adopted."

The Clerk read Section 2.

Mr. Hole: I will make the same motion as to Section 2.

Which motion prevailed.

Section 3 read by the Clerk.

Mr. Sherwood: I rise to ask an explanation of the words
"Within the boundary of the State of South Dakota". It seems to
me in that provision, a bond executed any place outside of the
State of South Dakota, even by residents of the State, would be
entirely null and void.

Mr. Van Buskirk: I have thought of that and suggest that
as far as the officer is concerned that it states as to any office therein,
— and move that the word "therein" be inserted after the word
"officer".

The motion received a second.

Mr. President: It is moved by the gentleman from Codington
that the word "therein" be inserted in the eighth line, after the
second word of the eighth line. Those of the opinion that the
motion prevail say "aye"; those of the contrary opinion say "no".

TERMS OF TERRITORIAL OFFICERS 277

The ayes have it and Section 3 is amended by inserting the word
"therein" after the word "officer."

Question recurring upon the adoption of Section 3, as amended
was adopted.

Clerk reads Setcion 4: All officers, civil and military, now
holding their offices and appointments in this Territory under the
authority of the United States, or under the authority of the Ter-
ritory of Dakota, shall continue to hold and exercise their respec-
tive offices and appointments until superseded under this Con
stitution.

Provided; That the provisions of the above sections shall be
subject to the provisions of the act of Congress providing for the
admission of the State of South Dakota, approved by the President
of the United States, on February 22, 1889.

Mr. Hole: I move the adoption of the section just read.

The President: The Chairman of the Committee moves the
adoption of Section 4 ; as many as are of the opinion that the motion
prevail, 5 ay aye ; the ayes have it, Section 4 is adopted.

Mr. Williams: I have one or two amendments prepared con-
cerning this section and before I offer it I wish to suggest verbally
an amendment in the second paragraph from the last, after the
word "and" in the first line, —

Mr. Hole: That is a mere clerical error in this line and also the
last 'ine.

Mr. Williams: I have an amendment which I offer further
and I will say that I have a number of amendments to offer to the
different sections and they are all fastened together on the same
paper. I will read them, I move that the report of the Committee
on Schedule and Ordinance be amended as follows: That Section
5 be amended as fellows': After the word "State" in the fourth
line of the 7th paragraph insert the words "and county" so it will
read "for the following State and county officers" and at the end of
paragraph 8 of said section add the words "and Clerk of Circuit
Court". I move the adoption of the amendments.

Which motion received a second.

The President: It is moved to amend Section 5 by inserting
after the word "State" the words "and county" and at the end of
paragraph 8 "and clerk of the Circuit Court".

Mr. Williams: That is the question referred to by Mr. Van
Buskirk. It is a question upon which members of the Convention

278 SOUTH DAKOTA DEBATES 1889

have differed and a question upon which, while differing, we are
very desirious it should be settled in accordance with the Consti-
tution and the Omnibus Bill, and what is right and just. Of course
this question is confined there in the Omnibus Bill; does it provide
by Ordinance for the election of Clerk of the Circuit Court? Those
who favor the proposition that we have authority under the Omni-
bus Bill for the election of Circuit Clerk, base our belief upon two
different parts of the Omnibus Bill. Section 9 — I will read all of
Section 9 so as to get the commencement, — "Sec. 9. That until the
next general census, or until otherwise provided by law, said States
shall be entitled to one representative in the House of Representa-
tives of the United States, except South Dakota, which shall be
entitled to two; and the representatives to the fifty-first Congress
together with the Governors and other officers provided for in said
Constitutions, may be elected on the same day of the election for
the ratification and rejection of the Constitutions ; and until said State
officers are elected and qualified under the provisions of each Con-
stitution and the States, respectively, are admitted into the Union,
Ihe Territorial officers shall continue to discharge the duties of their
respective offices in each of said Territories."

Now I take it that that means this: The words "other officers,"
that without any stretch of construction, this Convention under that
is authorized to provide for the election of every officer of the State
and county provided for in this Constitution. And though we do
not carry it to that extent, I believe we have that authority ; that it
is not only the duty and privilege of this Convention, and power,
but it is the duty of the Corfc-ention to provide for this office ; why?

I believe it is generally conceded that the Clerk of the District
Court under the present system that we have when the Stafe gov-
ernment comes into existence and the District Court going out of
existence that the Clerk will follow and that we will have the office
and election of the Judge of Circuit Court as provided for ; but there
is no p-ovision made for the clerical work of that Court; then we
will have a court without any clerk ; that is conceded by some as be-
ing the condition in which we will find ourselves after we are ad-
mitted. Now that being the case in our view it is necessary 1 o fill
that office. While this C invention may by ordinance have power
to fill it as the Convention of 1885 did by providing that the Clerk
will held' over, I think it is very doubtful. The Constitution
adopted in 1885 by which we are bound, provides that the Clerk

CLERKS OF COURT 279

of the Circuit Court is an elective office. I hold, that being an
elective office that the Clerk of the Court must be elected before an
appointment can be made to fill a vacancy. Sec. 32 of Art.V of
the Constitution reads as follows: "There shall be a Clerk of the
Circuit Court in each organized county, who shall also be clerk of
the county court and who shall be elected by the qualified electors
of such county. The duties and compensation of said Clerk shall
be as provided by law and regulated by the rules of the court con
sistent with the provisions of law". Then the Constitution un-
equivocally provides for that office. We have another section of
the Omnibus Bill that is still more sweeping in its terms and ex-
presses this view. Sec. 24 reads as follows: "That the Consti-
tutional Convention may by ordinance provide for the election of
officers for a full State government."

For the election of officers for a full state government ! We hold
further that the phrase "full state government" does not mean the
officers usually denominated State officers, only, but officers that
will make a state government complete in all its parts. Not only
does it say in my judgment entitled by this instrument, but this,
including county officers, and other officers that are provided for in
this Constitution. I believe that phrase will include all of them.
Taking these two sections there is no question but what the power
is provided for us to provide for the election of the Clerk of the
Court.

Sec. 5 of Article IX of the Sioux Falls Constitution we have the
reason for some objections that are raised to the position that I
maintain with others. That section reads as follows: "In each
organized county at the first general election held after the ad-
mission of the State of Dakota into the Union and every two years
thereafter there shall be elected a Clerk of the Court, etc. It says
at the first general election there shall be elected a Clerk of the
Circuit Court. This Constitution, while it provides and defines
when and what a general election is, in a certain way, the term
general election is used there ; there was a definition of the term
"general election", in cases of all general elections occurring on even
numbered years.

Then under this provision the Oerk of the Circuit Court will
be elected in June, 1890. Xo\v how are we to bridge over until

280. SOUTH DAKOTA DEBATES 1889

1890? That is a point that is interesting many of us. We want
to provide for that office until November, 1890. Looking at the
Omnibus Bill we have found in two sections ample authority for
this Convention to provide for that. I believe not only that we
have authority, but it is our duty to do so and it is generally de-
manded by the people we represent to provide for this election.

A Voice: Let us hear the section under consideration, read.

The Clerk reads Section 5.

Mr. Van Buskirk: We have with some other members of the
Committee reached a somewhat different conclusion with reference
to the position which we occupy upon this particular subject. I
have supposed that when Congress was dealing with the question
that they were taking into consideration what usually in the history
of the administration of the law as it had existed in other states
would be made to apply here and to that history we may refer for
the purpose of determining what offices are referred to here and
included within the provisions of the Omnibus Bill. I will call
the attention of the members to the Second Article of the Consti-
tution of Dakota, known as the Sioux Falls Constitution. I do this
for the purpose of their observing that all state constitutions like
ours contain this provision. I do it for the purpose of ascertaining
who are state officers in particular.

"The powers of the government of the State are divided into
three distinct departments, the Legislative, Executive and Ju-
diciary. And the powers and duties of each are prescribed by this
Constitution". Now we will remark that while we have theoret-
ically a State possibly without any difference in the administration
of law, practically we have no State government without the election
of State officers. And that when they are speaking in the Enabling
Act of "State officers," they are referring to officers who fill these
different positions necessary to the exercise of the powers of the
State government. The government of the State can be exer-
cised by officers filling these particular positions in existence.
The members of the Legislature would make the law of the State
the courts would determine the meaning and interpretation of
them and issue their process and put them into the hands of the
Executive Department and they would be executed ; and certain of
the other officers like the Treasurer, would constitute a branch
which would be called the Executive, the Legislature would be
the Legislative Department ; the Judicial officers would exercise the

CLERKS OP COURK 281

Judiciary functions ; when you have got those you have got all
that is perhaps absolutely necessary to constitute a whole state
government. As I have said, I apprehend that when Congress was
using the terms which they have used in the Omnibus Bill they were
using them in the light of the provision that was contained in this,
and which provision is contained in all other constitutions. Now,
let us proceed a little further and consider this Omnibus Bill. The
Section 9, to which my Brother Williams has referred, "That until
the next general census, or until otherwise provided by law, said
states shall be entitled to one representative in the House of Rep-
resentatives of the United States, except South Dakota, which
shall be entitled to two; and the Representatives to the Fifty-first
Congress, together with the Governors and other officers provided
for in said Constitutions, may be elected on the same day of the
election for the ratification or rejection of the Constitutions ; and
until said State officers are elected and qualified under the provisions
of each Constitution and the States, respectively, are admitted into
the Union, the Territorial officers shall continue to discharge the
duties of their respective offices in each of said Territories."

Now, I suppose by a familiar rule when we speak of other
officers, we are referring to a particular class, to-wit: The State
officers, among which the Governor is one; that when they state
other State officers they refer to that class which immediately pre-
ceeds, to-wit: The Executive Department of the Government,
and do not refer to county officers. And I am further, by that
section, inclined to that belief. We find before we conclude that
section, "and until said State officers are elected" the Territorial
government shall remain.

Taking the first part even without the other, I should arrive
at that conclusion; I am confirmed in the belief that that was what
was meant from the fact that they state " until the State officers
are elected" and qualified, etc. I do not see how, under that, you
can rationally reach any other conclusion, but that they are speak-
ing of the governors and Treasurer and Auditor and perhaps the
Superintendent of Schools ; that those are the officers denominated
State officers.

Now, I understand very well in the early legislation of this
country we had no difficulty in separating the State from the county
officers. If an individual inquires "Who arc the State officers. I
do not think anybody ever thought of stating they included Mr.

282 SOUTH DAKOTA DEBATES 1889

Register of Deeds, or Constable, or Mr. Pathmaster; but he would
say the Governor and Treasurer and Judges of the Circuit Court
were State officers. Here is another matter stated perhaps in most
all of our constitutions; it is found in this one; a provision which
says in case of a vacancy the Governor shall appoint all these of-
ficers down to the County Judge; the other officers are to be ap-
pointed by the Board of County Commissioners. It seems that
in our Constitution, — and I assume that Congress drew that line
right through there separating the officers of State from the county
officers. It seems to me that is what it means. We may proceed
to another provision of this Omnibus Bill, w^hich adds force to this
concktsion. I read it: "That the Constitutional Convention may
by ordinance, provide for the election of officers for full State
government including the members of the Legislature and Repre-
sentatives of the Fifty-first Congress". It seems a little singular
to me that if all other officers aside from those that are determined
State officers were included within those teims they should have
taken so much pains as to have said "including the members of
the Legislature". Now that circumstance, using that language
forces me to the conclusion that they intended when they spoke of
the officers of the State government to have in mind those which I
have mentioned, and to have no question about it they say in-
cluding the members of the Legislature. It seems to me that if
they had intended that every officer down to Pathmaster was to be
denominated a State officer, they would not have taken pains to
have used that language at all. We read a little lower "But that
said State government shall remain in abeyance until the States
shall be admitted into the Union, as provided in this act".

Now this Legislature, together with another rule which Con-
gress had no doubt in mind, (it seems they had confined themselves
to the Constitution of 1885 a great many times) they indicate a
provision which reads in this way, that there shall be elected at the
first general election after the admission of this State into the Union,
county officers, which includes this Clerk of the Circuit Court. I
say I assume from the circumstance that they had had this Con-
stitution before them so many times and so long that these pro-
visions were in their minds and before them when they drew this
Omnibus Bill; they anticipated or intended that that should be
correct and that that should be the result of it and that that was
the construction they put upon it from the language used in this

CLERKS OF COURT 283

Omnibus Bill that perhaps constitutes the principal legal objection
to the introduction of this amendment into the ordinance. It seems
to me remarkable that we should stoop in this Convention, — that
we should stoop to provide for one solitary county officer as a matter
oLpolicy.

It is simply a question of whether or not we have got the power ;
I take it under the provisions of this bill that these county officers
hold over; and the very fact that they say in this Constitution,
"Clerk of the Circuit Court"; I cannot think that that has any
significance, because if we take what they do in some of the other
states, where the courts are denominated "District Courts", just
as many of the States instead of taking the term"Circuit Court"
continue the original,— in the State of Iowa, they continue the
name, "in District Court". The mere circumstance that a Court
exercising the same jurisdiction under the Constitution is to be
called Circuit Courts here with the same jurisdiction that was ex-
ercised under the law previously in existence, to-wit: The Dis-
trict Court and which is the same Court, and which exercises the
same jurisdiction succeeds to all the powers and succeeds to all
the unfinished business contained therein, — the mere fact that they
state this shall be called the Circuit instead of the District Court
can have no significance so far as the Clerk being a County officer..
I think you will find also that so far as our statute is concerned, it
provides for a Clerk of the District Court. We have a statute upon our
books passed by the Legislature of the Territory, in which it was con-
sidered a county office just as much as the Register of Deeds, and
perhaps many of us will remember at the next general election that
in many counties of this Territory they went to work and elected
Clerk of the District Court. It seems to me that the circumstance
that the Legislature of this Territory in the next session after 'the
adoption of the Constitution of 1885, provided for the election of
this officer, Clerk of the Court as a county officer, must settle in
the mind of every careful citizen the fact that they are not State
officers, but simply county officers who hold over under the laws
of the Territory.

Mr. Williams: I do not wish to prolong this debate, but I
wish to correct an error. He reads Article second of -the Constitu-
tion in support of his doctrine; I wish to read it: "The powers <>t"
the government of the State are divided into three distinct depart-
ments,— the Legislative. Executive and Judicial, and the powers

284 SOUTH DAKOTA DEBATES 1889

and duties of each are prescribed by this Constitution". He goes
on to say the powers of each are distinct and separate. Now the
Ordinance does not say that we can provide by ordinance for the
election of. the officers of each of these departments! It goes on to
say the powers of the government are divided into three classes, — •
three distinct classes, — that is what Article II is; it provides that
the powers of government enacted there and exercised by the will
of the people is divided into three departments laid down, and in
order that these three departments of government, as laid down,
may not fail, we will turn to another article. Article V and see
what is necessary to complete these three powers of government.

The Judicial powers of the State, except as in this Constitution
otherwise provided, shall be vested in the Supreme Court, Qircuit
Courts, County Courts, and Justices of the Peace, and such other
courts as may be created by law for cities and incorporated towns.

According to his own doctrine, in order that the full State
government may be filled, we must elect the Justices of the Peace.
I want the members of the Convention to think of that, I want
to correct another mistake; that is this: The gentleman from
Codington said, after the adoption of the Constitution in 1885 that
the Legislature went to work and provided for the Clerk of the Dis-
trict Court ; my understanding of that is that the Clerk of the Dis-
trict Court was provided by Act of the Legislature prior to that,
because I have a distinct recollection that the question came up
in 1884 and 1885 and the attempt was made in our town to elect
one ; and that it was overruled ; that it was decided by the bar of
this Territory that the Legislature had no power ; the point I wish to
make is this, that the statute was not passed in pursuance of this
Constitution of 1885, but was an act of the Legislature without
reference to this.

Mr. Wood of Pennington: I desire to say a few words on this
question and for two reasons ; I am mistaken in my understanding
of the proposition or else the gentleman who resisted the election
of the Clerk of Court at a common election was mistaken. This is
a matter that we should get right upon, if we can. In the first
place the report of the Committee provides in section four, "All
officers, civil and military, now holding their offices and appoint-
ments in this Territory, under the authority of the United States,
or under the authority of the Territory of Dakota, shall continue to

CLERKS OF COURT 285

hold and exercise their respective offices and appointments until
superseded under this Constitution".

We are told here by the gentleman from Codington that it is
the same court; let us see about that. These courts, under the
Constitution will be State Courts ; there will be no issue raised upon
that proposition. Now we take that for granted and I think it is
granted that they are State Courts. Hardly the District Courts of
the Territory of Dakota; they are Federal Courts, that is with this
difference ; they have the jurisdiction conferred by our Statute upon
the District. Courts and in addition to that they have the Jurisdic-
tion of the United States Circuit and District Courts conferred upon
them by the United States Circuit and District Courts and they
have the jurisdiction of those courts conferred by law.

Will the gentleman contend for one moment, can anyone con-
tend on principle that our Circuit Courts, after we are admitted into
the Union, and these Courts are organized, will it be contended that
they are the same grade or successor of the District? Why, it is
the creation of a different and distinct tribunal and Court! Not
the same at all. Every one of these District Courts of the Ter-
ritory, get their life not from any law of the Territory ; I apprehend
in the first instance they get their life and authority from the Or-
ganic Act. Hence, they are not Territorial Courts in the sense of
being merged into State Courts; their Clerks are appointed by the
Courts themselves ; we have the same provision relative to the
Clerks of the Supreme Court and the reporters of the Supreme Court:
"There shall be a Clerk and also a Reporter of Supreme Court who
sliall be appointed by the Judges thereof and who shall hold their
office during the pleasure of the Judges". It is not even an elective
office. What business have we to provide for other offices not to
be superceeded by the State government? Is the office of Sheriff
to be superseded? Or Coroner or Probate Court? That Court
is superseded by the County Court in other words there is a merger
itito the county courts.

Who will contend that a County Judge is a State officer? We
are cited to the Second Article of the Constitution, which defines
that departments into which the State government is divided.
the Legislative, Executive and Judiciary . Who will say all
Judiciary oVfu ers are State officers? I think the gentleman will not
contend that a Justice of the Peace is a State officer, yet the Con-
stitution in enumerating the phu cs under the judicial powers.

286 SOUTH DAKOTA DEBATES 1889

names the Justice of the Peace as one of them. He is not a State
officer in any sense. Where do we hear of a Jusitce of. the Peace
being superesded by the State government?

They have been elected, qualified and gone about their busi-
ness as provided under the laws of the Territory ; they are not super-
ceeded; that is, their business is not affected by the terms of the
Constitution.

Now, it is plain, one of the first questions that will arise unless
we provide for the election of the Clerks of Circuit Court ; they are
ex-officio Clerks of the County Court. For fear that will not be
understood, I refer the Convention to Sec. 32, of Article V, and you
will see that they are ex-officio Clerks of the County Court. The
section referred to reads as follows: "There shall be a Clerk of the
Circuit Court in each organized county, who shall also be Clerk of the
County Court, and who shall be elected by the qualified electors
of such county. The duties and compensation of said Clerk shall
be as provided by law and regulated by the rules of the Court con-
sistent with the provisions of law".

The Schedule report has provided for the election of the
County Judge ; it is contended that he is a State officer. Turning
to Section 19 of Article V it reads as follows: "There shall be
elected in each organized county a County Judge who shall be Judge
of the County Court of said county, whose term of office shall be
two years, until otheriwse provided by law." What is the Consti-
tution defining in that office? It is a county office. "There shall
be elected in each organized county" what? A state officer, to be
known and termed County Judge ? Not at all ! But, in each county
shall be elected a county Judge. His office is a County office, known
as County Judge. You are to provide for the election of a County
Judge, yet you pretend that he is a State officer; whereas the Clerk
of his Court, being a Clerk ex-officio, is not a State officer but a
county officer— now where do you draw the line ?

Mr. Dickinson: "All officers provided for in this Article shall
respectively reside in the district, county, precinct, city, or town
for which they may be elected or appointed" ?

Mr. Wood: Very well. Gentlemen of the Convention; No-
taries Public are appointed by the Governor ; they are not elected at
all ; are they considered Territorial officers ? I think you will find
with the exception of the States of California and Kentucky that
the courts hold that they are State officers. A different rule pre-

CLERKS OF COURT 287

vails in some of the states they are authorized to perform the duties
and functions of that office simply in the county where their cer-
tificate of appointment is recorded. They can of course have it
recorded in each county in the State, but until so rcorded they can
only act on the county where it is so recorded. Then the distinction
in the appointing power to fill vacancies ; the distinction is as to
whether the office is a county or a State office. "Vacancies in the
elective offices provided for in this Article shall be filled by ap-
pointment until the next general election as follows: All Judges
of the Supreme, Circuit and County Courts by the County Board
of the county where the vacancy occurs ; in cases of police magis-
trates, by the municipality." The Governor is told to fill the va-
cancy in the County Judge's office by appointment; but does that
determine to your satisfaction, and from that reasoning can you
say it creates and makes the Judge of the County Court and his
Clerk a State officer? If a State officer, why is not his salary paid
by the State? We do not find any provision of that kind in the
Constitution ; whereas the Circuit Court Judges receive their salary
from the State. I find this: I think, and I think the majority
of the Convention will agree with me that the Judges of the County
Courts are county officers and not State officers at all, under this
Constitution, — that the Probate Court is superseded or will be
superseded by the State govrnment ; at least the Committee took
that view of the matter that the Clerk of the Circuit Court is ex-
officio Clerk of the County Court. The election of these Judges was
provided for, but these Judges of these courts are to be provided ac-
cording to the provisions of this Constitution with a Clerk ;
he is an officer distinctively of that Court and without we provide
for that Clerk, your Court is incomplete isn't it, under the Con-
stitution? Is not that true? I say, unless we provide for the elec-
tion of the Clerk, having elected your Judges you have not fully pro-
vided for the organization of these Courts; and not having fully
provided for the organization of these Courts, then they do not, and
cannot exist in their entirety as contemplated by the Constitution.
They say if we elect the Clerk of the Court we have got to go right
down through the list and elect all the other county officers; that
is true, if you can show where these officers will be superseded by
the State government; but we find on the contrary, they are con-
tinued straight through. In fact, these officers are continued not
only in power, but in name, as existing under the laws of the Ter-

288 SOUTH DAKOTA DEBATES 1889

ritory ; the laws of the Territory are continued right forward; noth-
ing superseded excepting those of which it can be said by reason
of there being a provision displacing them, under the State Con-
stitution, they are superseded; everything else is continued. ,

I turn to the office of Sheriff and Register of Deeds, but there
is a difference between those and the Clerks of the District Court.
That is not an elective office under our law at all ; the Legislature
passed an act of that kind, or a certain Legislature did attempt
to. While that question never went to the Supreme Court of this
Territory the question was raised in this very district ; the District
Court of this District, I think in this count}7, held that the Legis-
lature had no such power; at any rate the question was determined
in some of the counties of South Dakota ; we elected a Clerk of the
Dirtrict Court in Pennington County, but by reason of that decision,
which we obtained, he never qualified and the old Clerk went on
by virtue of his appointment. I think from these various pro-
visions it will appear to the Convention clearly that we should elect
all the officers proper to be elected in order to set the State govern-
ment in full motion under Section 9 of the Omnibus Bill. Com-
mencing with line five of Section 9, "And the Representatives to
the Fifty-first Congress, together with the Governors ond other
officers provided for in said Constitutions (providing for all four
States in the act) may be elected on the same day of the election
for the ratification or rejection of the Constitutions ; and until said
State officers are elected and qualified under the provisions of each
Constitution and the States, respectively, are admitted into the
Union, the Territorial officers shall continue to discharge the duties
of the respective offices in each of said Territories". That is they
may be elected on that day or they may be elected on some other
day, but they must be elected. Some gentlemen may contend that
there is an appointing pow-er somewhere. Is there an appointing
power for an elective office before that office is filled by an election?
There is no such thing known as a vacancv in an elective office until
an election has been had unless the law provides that the first
incumbent can be appointed; you cannot have such a thing as a
vacancy until an election has been had. It will be contended
perhaps that this same section has a provision obviating the dif-
ficulty "until such State officers are elected". It is contended by
reason of that language that our power is confined to State officers

CLERK OF COURTS 289

only. It is one of the incomprehensible things how anyone can
contend that that is true. Look at the language again.

Mr. Stroupe called to the chair by the President.

Mr. Wood: "And other officers provided for in said Consti-
tution may be elected on the same day of the election for the rati-
fication or rejection of the Constitution". Now, they do not con-
tinue the discussion relative to the officers or all of the officers
contained in the first provision ; they are simply now proceeding to
define what shall take place, or what shall be done when the States
arc admitted, and what shall be true until they are so admitted;
they are not limited in any sense, the language is simple and distinct
that all officers provided for in the Constiuttion shall be elected,
and we may provide for their election at the coming election. Since
we have provided for the election of these Courts it seems to me it
will be our duty also to provide for the election of these Clerks be-
cause until you provide for the election of these Clerks you cannot
organize the Courts ; and until the Clerk is elected the appointing
power cannot be exercised because no vacancy can exist in an elec-
tive office until there has been an election unless the law creating
the office provides the first incumbent may be appointed. Then
I say, there being no such provision that an incumbent of the office
of the Clerk of the Circuit Court can hold by appointment ; there
must be an election before there is any vacancy in that office. There
is no doubt in my mind but what the State government will sup-
ersede everything connected with the district court, theri you will
not have a Clerk of the Court at all ; he cannot hold over, he has no
authority under the State government, it all comes from the Judge,
not through the people and until you elect a Clerk you will have
none and I contend there is no appointing power other than the
County Commissioners and they are judges themselves. The Cir-
cuit Judge might contend that he had the appointing power, the
County Judge might contend that HE had the appointing power,
and so as well, the County Commissioners might contend that they
possessed the appointing power. You will have a row in every
county in the State; there will be a regular scramble. In some
localities they will have a dispute as to the appointing power, then,
then if we pass this without providing for the election of the Clerk
you will see the magnitude of the error committed ; you will see where
the critisism will fall and from whom; it will lie all the Clerks and
everybody everywhere and they will say that the Constitution pro-

290 SOUTH DAKOTA DEBATES, 1889.

vided for the election of the Judge, why didn't it provide for the
election of a Clerk as well ?

Mr. Sterling: A great deal of the argument has turned upon,
the necessity of the election of the Clerk of the Circuit Court upon
the ground that there will be no person to fill that position and that
there is no vacancy that can be filled by an appointment. This posi-
tion was taken by some of the members of the Judiciary Committee
and it was insisted that that being an elective office, no election
being first held, the office was, so to speak, not organized. There-
fore there was no vacancy that could be filled by an appointment.
On the other hand it was contended that the Constitution created
the office, that if there was an incumbent in the office there was a
vacancy and that there was power to fill that vacancy by appoint-
ment under the Constitution. I was somewhat surprised by the
position taken by some of the members of the Committee in that
respect. I took a little occasion during our adjournment to look
up upon that point and as to whether there was any peculiar mean-
ing to that word vacancy, in this connection, which would render
such an important office as this vacant, because there was no
election under the Constitution. In Dillion on Municipal Corpor-
ations, Sec. 161 it is said (I am just reading from pencil notes ; I will
refer later to the decision that is referred to in this case). In this
case it is said that a resignation takes effect and vacates for all
time. "There is no technical nor peculiar meaning to the word
vacant, it means empty, unoccupied; as applied to an office without
an incumbent. There is no basis for the distinction urged that
it applies only to an office vacated by death, resignation or other-
wise. An existing office without an incumbent is vacant whether
it be new or an old one. A new house is as vacant as one tenanted
for a year which was abandoned yesterday. We must take the
words in their usual plain sense". I am reading from the case of
Stocking vs. the State, found in the 7th Indiana, page 326. I have
examined the case since we have convened, since recess today. It
was a case where a party was indicted for murder and in a district
which had been newly created. It provided for the electing of the
Judge of that district. There was a failure to elect; there was a
failure to even attempt an election of Judge and under the ap-
pointing power given, the Governor of the State comes in and fills
the vacancy in that office. The Judge was appointed, the man
was tried, these questions were raised upon the trial of the party

CLERKS OP COURT 291

for murder. This is word for word' from a decision that was ren-
dered from the Supreme Court of the State of Indiana, and there is
an Indiana case following this which is precisely similiar. A case
where election was provided by General Assembly. The General
Assembly did not elect, the Governor filled the office by appointment.
Now, is there any right to fill this office of Circuit Clerk by appoint-
ment ? I say that there can be no question absolutely but what there
is a vacancy. Sec. 37, of Article V, provides: "All officers pro-
vided for in this Article shall respectively reside in the district,
county, precinct, city, or town for which they may be elected or
appointed. Vacancies in the elective offices provided for in this
Article shall be filled by appointment until the next general election,
as follows: All Judges of the Supreme, Circuit and County Courts
by the Governor. All other judicial and county officers by the
County Board of the county where the vacancy occurs ; in case of
Police Magistrates, by the municipality." There is other authority
for the election of the County Judge at this particular time than is
found in Section 37. It is said because this officer is appointed by
the Governor that he is a State officer, that as the Omnibus Bill
authorizes the election of State officers, that the County Judge being
a State officer may be elected now. Section 26, of the same Article
V, provides that the Judges of the Supreme Court, County Court
and Circuit Courts shall be chosen at the first election held under
the provisions or this Constitution. So I contend that the makers of
this Constitution plainly contemplated the election of the County
Judges as wrell as the Supreme and Circuit Judges at the first election
held under the provisions of this Constitution. Now, gentlemen
say that because we are authorized under the Omnibus Bill to elect,
what? Not all the officers as the gentleman said, provided in the
Constitution, that is not in the Omnibus Bill respect of all officers
necessary for a full State government. Now when they made this
Constitution and provided for the election of officers at particular
times the makers of the Constitution knew, and I do not believe
Congress intended to indicate with any uncertain tone what they
knew. They knew all officers would be necessary to carry on State
government; they had in mind that if there was a vacancy in this
office of County Judge that it would be filled by the Board of county
Commissioners ; they provided all the other county officers should
be elected when? Not under the provisions of the Constitution when
they got a case in the Courts, but at the first general election held

292 SOUTH DAKOTA DEBATES 1889

after the admission of the State into the Union. These different
county officers should be elected. So I think, Mr. Chairman, that
there is in the first place under this Constitution, no authority for
the election of the Circuit Clerk, we have no warrant for it and I
think in the second place that there is no necessity for it.

Mr. Jolley: So far as the Omnibus Bill is concerned I do not
think that Mr. Springer or anyone else who had that measure under
consideration got so far down in elective officers as to provide for
the election of county officers. All that they did provide for was
the State officers. So far as the argument made by the gentleman
from Pennington is concerned, while very ingenius and presented
in a very able manner, falls flat. His premises are not correct.
There is now, and will be until we are admitted under this Consti-
tution, if we are admitted under it, a provision by which the Clerks
of Court can be appointed in the several counties in this Territory
by Judges of the District Court. They are now,
they will remain there until we are admitted as the
State of South Dakota under this Constitution,
that is the District Courts of the Territory of Dakota. And just
as soon as we are admitted under this Conststution, if we are
admitted, the provisions for these changes under the provisions
of the Constitution are amply full and complete as to what course
shall be with reference to the office of Clerk of the Court and there
is no doubt, not any ambiguity as to how that officer shall be ap-
pointed and what his powers are. Sec. 32 read: "There shall
be a Clerk of the Circuit Court in each organized county, who shall
also be Clerk of the County Court, and who shall be elected by
the qualified electors of such county. The duties and compensation
of said Clerk shall be as provided by law and regulated by the rules
of the Court consistent with the provisions of law." Under this
Constitution we are attempting to thrust the provisions in Sec.
32 that there shall be a Clerk of the District Court that shall be
elected by law. If the position taken by the gentleman from Pen-
nington is tenable then you have here a rule by which you can de-
ceive the will of the people and do great injustice as long as you see
fit to do so. Why? It is soberly contended that before there is a
vacancy in any office created by law, there must be an incumbent
to fill that office. Taking that rule, where are we? Supppose at

CLERKS OF COURT 293

the next general election we had elected a gentleman as Governor
of this Territory before the State is admitted. This Governor dies,
there is no vacancv in that office and it can not be filled, according
to the proposition laid down by the gentleman from Pennington,
before that Governor has been sworn in, that then there becomes a
vacancy and then can it be filled. It must necessarily be a vacancy,
his office is created, at the same time the duties; there is a vacancy
in that office; that is law. To show what the intention of the
framers of this Constitution was, Sec. 5 of Art. IX reads: "In each
organized county, at the first election held after the admission of
the State of Dakota into the Union, and every two years thereafter,
there shall be elected a Clerk of the Court, Sheriff, County Auditor,
Register of Deeds, Treasurer, States Attorney, Surveyor, Coroner,
and Superintendent of Schools, whose term of office, respectively
shall be two years, and except the Clerk of the Court, no person
shall be eligible for more than four years in succession to any of
of the above named offices. This Constitution by Sec. 32 says,
Art. V says: "There shall be a Clerk of the Circuit Court in every
organized county, who shall also be Clerk of the County Court, and
who shall be elected by the qualified electors of such county. The
duites and compensation of said Clerk shall be as provided by law
and regulated by the rules of the Court consistent with the pro-
visions of law." Sec. 5, Art. 9, says that we shall not elect the
Clerk until the first election after we are admitted as a State under
this Constitution. Sec. 37 says, as read, that where there is a va-
cancy in the county offices that that office shall be filled by the
County Commissioners. What can be more plain, clear and dis-
tinct than that? That there must be, just as quick as we are ad-
mitted, the office of the Clerk of the Circuit Court and we are pro-
hibited by this Constitution from electing a Clerk of the Circuit
Court until the first election after we are admitted, into the Union
That instead of making these acts conflict by electing a clerk of the
Court would but just add to the complication. There is no court
in Christendom could take that to be the law. plain in its details in the

294 SOUTH DAKOTA DEBATES 1889

place of an act which would fly in the teeth and eyes of this Con-
stitution, and against the rules laid down by it. No sir, the Con-
stitution says there shall tm a Clerk of the Court and the Constitu-
tion says we cannot elect that Clerk of the Court until the general elec-
tion after we are admitted into the Union under this Constitution.
And the Constitution further says that where there is a vacancy in
the county offices it shall be filled by the Board of County Com-
missioners and that is all it says. It is plain and clear.

Mr. Sherwood: I desire to add one or two points to those of
the gentleman from Pennington; I think that we have a right to
elect a Clerk of the Court. I apprehend that the only question at
issue here is the question of power. I do not think there will be
any doubt among the majority of this Convention as to the ex-
pediency or necessity of it. I desire to call attention to the re-
marks of the gentleman from Spink in the case which he read. In
relation to election under the Constitution, I desire to say that the
election on the 1st day of October next is not under this Constitution.
When the Constitution of 1885 was adopted, all the powers granted
were the powers grant'ed under this Constitution. Today we stand
in a different position. The powers we are moving under are the
powers that eminate from Congress. Referring to Article 24 of
said Omnibus Bill does it not provide in terms that all officers
provided for under said Constitution might be elected ? I desire to
read a portion of Sec. 9: "Representatives to the Fifty-first Con-
gress together with Governors and other officers provided for in
this Constitution." Now, in so many words it says "All other of-
ficers provided for in this Constitution". Either those words mean
nothing or they mean something. "The other officers." No one
will contend for a moment but what the Clerk of the Court is one
of the other officers, provided for under this Constitution, expressly
is designated as one of the officers provided for under this Consti-
tution. Now I say that these words mean something or they mean
nothing. I desire to say further that the power to elect these var-
ious officers carries with it the power to provide for their election;
that is the common rule in relation to the interpretation of statutes.

CLERKS OF COURT 295

That must not be interpreted as follows: The intent of the statutes
indicated by the framers of it must be taken into consideration so, if
possible, to give a meaning to all portions of the statute. Now,
to give it the interpretation that has been given it here today wipes
out Sec. 9 and leaves Sec. 24 intact. Interpreted as we interpret it
blends Sees. 9 and 24 and gives power to elect all of the State
officers.

Mr. Sterling: I stand corrected as to he words of the Omnibus
Bill. I contend that that subject, the election of officers provided
for under this State Constitution must be construed in reference to
the Constitution itself at the times of the election provided for in
the Constitution and that by instructing this Convention to re-
submit this Constitution to the people they said, or expressed the
meaning that the Clerks of the Court shall not be elected.

(Calls of question from all over the house.)

Mr. Willis: I am beginning to conclude that we who are not
lawyers cannot stand much more information on this subject.
I am about the opinion of the old lady, that she believed the Scrip-
tures would still throw some light on this subject ; I shall begin to
make a speech probably myself, if this continues.

(Calls of question.)

Mr. President: The question is upon the amendment of Mr.
Woods, of Pennington.

Mr. Sherwood: I call for the reading of the amendment.

Mr. Williams: I will read it: "That Section 5 be amended
after the word 'State' in the fourth line of the 7th paragraph by
inserting the words 'and county' and at the end of paragraph 8
of Section 5, add the words 'and Clerk of Circuit Court.' "

The question on the amendment reaching a vote resulted as
follows: Ayes 22; nays 39. The motion was declared lost, by
the President, the following gentlemen voting aye: Messrs. Atkin-
son, Boucher, Clough, Cook, Davies, Fowles Goddard, Hall, Hen-
ninger, Huntley, Humphrey, Matson, McFarland, O'Brien, Peck,
Sherwood, Smith, Spooner, Williams, Wood of Pennington, Zitka,
and Mr. President. 22. And the following gentlemen voting nay
Anderson ,Berdahl, Beuchler, Coats, Cooper, Corson, Couchman,
Craig, Dickinson, Diefendorf, Downing, Eddy, Edgerton of Yank ton,
Fellows, Gilford, Hartley, Hole, Houlton, Jolley, Kimball, Lee,
Lyons, Ramsey, Ringsrud, Scollard, Stoddard, Sterling, Stroupe,

296 SOUTH DAKOTA DEBATES 1889

Thompson, Van Buskirk, Van Eps, Van Tassel, Wescott, Wheeler,
Whitlock, Willis, Williamson, Wood of Spink, Young. 39.

Mr. President: The question now stands upon the adoption
of Section 5.

Mr. Humphrey: I would call attention to the last two par-
agraphs of the section, the last two paragraphs but one, the para-
graph beginning "if it shall appear". The last clause of that par-
agraph, the last clause of the next, it seems to me, that they are
superfluous. I would not move that they be expunged, but I call
attention of the Chairman of the Committee and if he thinks they
are nesessary there I do not object absolutely.

The Chairman: The motion is upon the adoption of Sec. 5.
As many as are in favor will say aye. The ayes seem to have it ;
the ayes have it. Section 5 is adopted. The Clerk reads Sec. 6
as follows:

Sec. 6. At the same time and places of election, there shall
be held by said qualified electors an election for the place of tem-
porary seat of government.

On each ballot, and on the same ballot, on which are the matters
voted for or against, as hereinbefore provided, shall be written or
printed the words, "For temporary seat of government."

(Here insert the name of the city, town or place to be voted for.)

And upon the canvass and return of the vote, made and as
hereinafter provided for, the name of the city, towTn or place,
which shall have received the largest number of votes for said
temporary seat of government, shall be declared by the Governor,
Chief Justice and Secretary of the Territory of Dakota, or by any
two of them at the same time that they shall canvass the vote for
or against the Constitution, together with the whole number of
votes cast for each city, town or place, and the officers, above nanjed,
shall immediately after the result of said election shall have been
ascertained, issue a proclamation directing the Legislature elected
at said election, to assemble at the said city, town, or place so
selected, on the day fixed by this Schedule and Ordinance.

Mr. Hole: I move the adoption of Section 6, as read.

This motion received a second.

The President: The question is upon the adoption of Sec. 6.
As many as are of the opinion that the motion prevail, say aye.
The ayes have it ; Section 6 is adopted.

The Clerk reads Section 7.

AUSTRALIAN BALLOT 297

Section 7. The election provided for herein shall be under
the provisions of the Constitution herewith submitted, and shall be
conducted, in all respects, as elections are conducted under the gener-
al laws of the Territory of Dakota, except as herein provided. No
mere technicalities or informalities, in the manner of form of election,
or neglect of any officer to perform his duty with regard thereto,
shall be deemed to vitiate or avoid the same, it being the true intent
and object of this ordinance to ascertain and give effect to the true
will of the people of the State of South Dakota, as expressed by their
votes at the polls.

Mr. Peck: I ask the Clerk to read my motion which he has
possession of.

The Clerk reads: "That Section 7 of the report of the Com-
mittee on Schedule and Ordinance be stricken out and the following
be inserted in lieu therefore:

RULES REGULATING THE ELECTION TO BE HELD UNDER THE AU-
THORITY OF THE ENABLING AOT FOR THE ADOPTION OR REJEC-
TION OF THE CONSTITUTION AND THE ARTICLES SEPARATELY
SUBMITTED THEREWITH AND THE REPRESENTATIVES IN CON-
GRESS; ALSO STATE AND JUDICIAL OFFICERS FOR SOUTH DA-
KOTA.

SECTION 1. That at the election to be held on the first day of
October, 1889, the election laws now in force in the Territory of
Dakota shall apply to and govern such election except as herein-
after specially provided.

SEC. 2. Nominations for State officers, Representatives in
Congress and Judges of the Supreme Court shall be made by any
State Convention and certified to by the Chairman and Secretary
of such Convention, according to form number one (1) hereinafter
provided, or by any three hundred (300) legal voters in South Da-
kota attaching their names to a paper nominating candidates and
filing the same with the Territorial Secretary.

SEC. 3. Nominations for members of the State Legislature,
Judges of the Circuit Court and Judges of the County Courts, shall
be made by any Convention held in legislative and judicial distri' ts
or county for which any such officer is to be elected, and certified to
by the Chairman and Secretary, according to form No. 2 hereinafter
prescribed, or by anyone hundred legal voters of any legislative
or judicial district or count \ . by attaching their names to a paper
nominating such officers, and filing the same with the County Clerk
or County Auditor to which such nominations refer.

SEC. 4. All certificates of nominations and nominating papers
provided for in Section two (2) shall be filed with the Territorial
Secretary by the fifteenth day of Septcmper, and all those provided

298 SOUTH DAKOTA DEBATES 1889

for in Section three (3) shall be filed with the County Clerk or
County Auditor by the twentieth day of September, 1889, and no
certificate of nomination or nominating papers shall be acted upon
except accompanied with the consent in writing of the persons or
persons therein nominated, provided that in case of death or resig-
nation, the authority making such nomination shall be permitted
to fill such vacancy by a new nomination.

SEC. 5. The Territorial Secretary, on the receipt by him of
the nominating papers hereinbefore mentioned, shall forthwith
transmit true copies of the same to the County Clerks or County
Auditors of the several counties in South Dakota.

Sec. 6. The County Clerk or County Auditor shall, after the
expiration of the time for receiving the nominating papers, forth-
with cause to be printed such a number of ballot papers as will
be sufficient for the purpose of the election and the number necessary
for each polling place shall be bound or stitched in a book of con-
venient form, and the County Clerk or County Auditor shall cause
to be printed in English, in large type, on cards, instructions for
the guidance of voters in preparing their ballot paper; such clerk
or auditor shall furnish ten copies of such instructions to the Judges
of each election precinct, and said Judges shall cause them to be
posted both inside and outside of the polling place, and said County
Clerk or County Auditor shall as provided by law, cause to be de-
livered to the proper judges of election the ballot box and all poll
books and returns now by law required or by this ordinance re-
quired to conduct and complete the election, also the ballot papers,
at least two (2) days before polling the vote; and shall cause to be
published in each newspaper in the county a true copy of the ballot
paper and card of instructions, said publication to be in the last
issue of said papers before the day of voting.

SEC. 7. Every ballot paper shall contain the names of all
candidates for Representatives in Congress, State and Judicial
officers, and members of the Legislature, and the name of the
political party to which each candidate belongs; also the form of
ballot for the adoption or rejection of the Constitution and the
Articles separately submitted therewith as provided in this ordi-
nance.

SEC. 8. Each polling place shall be furnished with a suf-
ficient number of compartments, in which the voter, screened from
observation, shall mark his ballot paper, and a guard rail so con-
structed that only persons within such rail can approach within
ten (10) feet of the ballot box, and it shall be the. duty of the judges
of election in each polling place to see that a sufficient number of
such places be provided and shall appoint a person to guard the
entrance to such compartments and he shall be paid the same as
the judges of election.

SEC. 9. The voters being admitted one at a time for each com-
partment where the poll is held shall declare his name, and when per-

AUSTRALIAN BATTOT 299

mitted by the judges to vote his name shall be enterted on the voter's
list, and he shall receive from one of the judges of election a ballot
paper on the back of which the initials of one of the judges of elec-
tion shall be so placed that when the ballot paper is folded they
can be seen without opening it, and the judges of election shall in-
struct him how to mark his ballot paper.

SEC. 10. The voter, on receiving his ballot paper, shall forth-
with proceed to one of the compartments of the polling station
and there without undue delay, not exceeding five minutes, mark
his ballot paper by putting a cross (X) in the space to the right-
hand side of the name of the person for whom he desires to vote and
if he desires to vote for any person whose nome is not on his ballot
paper he may write or paste on his ballot paper the name of the
person for whom he desires to vote, and shall then fold up his ballot
paper so that the initials on the back can be seen without opening,
and hand it to one of the judges, who shall, without opening it
ascertain that the initials are on it, and that it is the same ballot
paper given to the voter, and shall the place it in the ballot box
and the voter shall quit the polling compartment as soon as his
ballot paper has been put in the ballot box.

SEC. 11. The judges of election, on the application of any
voter who is xinable to vote in any manner provided, shall assist
such voter by marking his ballot paper in the manner desired by
such voter in thepresenceof the persons permitted to be in the com-
partment occupied by the judges and no others, and shall place such
ballot paper in the ballot box, and when the judges of election shall
not understand the language spoken by the voters claiming to vote,
they shall swear an interpreter, who shall be the means of commun-
ication between them and the voter with reference to all matters
required to enable such voter to vote.

SEC. 12. A voter who has inadvertently dealt with the ballot
paper given him in such a manner that it cannot be conveniently
used, may, on delivering the same to the judges obtain another
ballot paper in place of that so delivered up.

SEC. 13. Any voter refusing to take the oath or affirmation
of qualification as" required by law, when requested so to do, shall
not receive a ballot paper or be permitted to vote.

SEC. 14. No person shall be allowed to take his ballot paper
out of the polling place, nor, except as in case provided for by Section
Eleven (11), to show it when marked to any person so as to allow
the name of the candidate for whom he has voted to be known, and
any voter who violates or refuses to comply with this ordinance
shall not be permitted to vote.

SEC. 15. In addition to the judges and elerks of election one
watcher at each polling precinct for each political party ]>iv><. ntin.u
a candidate or candidates for the suffrage of the voters and no other
person shall be permitted in the compartment occupied by the
judges on election day, and such judges, clerks and \vatehers shall,

300 SOUTH DAKOTA DEBATES 1889

before entering upon thier respective duties take and subscribe to
the following oath or affirmation:

I, John Jones, do solemnly swear (or affirm) that I will keep
secret the names of candidates for whom any voter may have marked
his ballot paper in my presence at this election, so help me God.

SIGNED: J. J.

Sworn or affirmed before me at this first day of

October, 1889.

Justice of the Peace or Judge of Election.

SEC. 16. Immediately on the close of the poll the judges
in the presence of the clerks of election and such of the wratchers
and voters as desire to be present, shall open the ballot box and
proceed to count the number of votes for each candidate ; in doing
so, they shall reject all ballot papers which have not been supplied
by them as judges of election, all ballots by which more candidates
have been voted for than there are officers to be elected ; also those
upon which there is any writing or mark by which the voter can
be identified; all the ballots voted and counted, and those rejected,
those spoiled, and those unused, shall be put into separate envel-
opes and all these parcels shall be endorsed so as to indicate their
contents, and be placed in the ballot box and a return of the result
of the election at the polling precinct shall be made to the County
Clerk or the County Auditor, as now required by law for the election
of members of the Territorial Legislature.

SEC. 17. All expense incurred under these rules to be a charge
against the county and audited and paid as other claims against
the county.

Mr. Hole: I think that that doe* rot provide for things that
we must provide for. I think if that is added to Section 7 there
will be no conflict. This was made up with a view of and expecting
that that would be attached, but if you make that take the place
of Section 7 it does not provide for what we must provide for, but
if you make that as an amendment to it then it comes before the
Convention in a way that it can be discussed intelligently.

Mr. Peck: I have no choice whether it is added to the end
of Section 7 or takes the place of Section 7, no particular choice
as long as it goes through.

The President: Do you make this as an amendment to be
added to Section 7 ? Or is it a substitute?

Mr. Peck: If it be thought desirable to retain Section 7, I
do not care about informalities and have no objection that it be
added to Section 7 as an amendment.

Mr. Scollard: I move it be laid on the table.

Mr. Jolley: Oh, no!

AUSTRALIAN BALLOT 301

Mr. Hole: I have no right on the floor but to consider this
matter in the Committee Conference. This is a question upon
which we all can honestly differ and I ask as a favor, and I think
I express the wish of every one of the Executive Committee that
that motion might be withdrawn.

Mr. Scollard: I think, Sir, that this Committee is entitled to
as much courtesy as any other that has been appointed by the
President of the Convention and this matter came up before the
Committee and was voted down unanimously.

(Voices of No, No No.)

Mr. Scollard: You will have the floor after I get through,
if you please. I think, as a matter of right, that this matter ought
to be laid on the table. It don't belong to this Committee after it
was voted down. I therefore submit it to the Convention again,
that this amendment should be tabled.

The Chairman: It has been moved and seconded to lay the
amendment on the table.

(Calls for ayes and noes.)

The President: Those who are in favor of laying the amend-
ment upon the table will vote aye ; those opposed vote no.

The ballot resulted as follows:

Those voting aye: Messrs. Buechler and Scollard. (2).

Those voting nay: Messrs. Anderson, Atkinson, Berdahl,
Boucher, Clough, Coats, Cook, Corson, Couchman, Craig, Davies,
Dickinson, Diefendorf. Downing, Eddy, Edgerton of Yankton,
Fellows, Fowles, Gifford, Goddard, Hall, Hartley, Henninger, Hole,
Houlton, Huntly. Humphrey, Jolley, Kimball, Lee, Lyons, Mafson,
McFarland, O'Brien, Peck, Ramsey, Ringsrud, Sherwood, Smith
Spooner, Stoddard, Sterling, Stroupe, Thompson, Van Buskirk,
Van Eps, Van Tassel, Wescott, Wheeler, Whitlock, Willis, Williams.
Williamson, Wood of Spink, Young, Zitka and Mr. President. (57).

The President announced the result of the ballot, two voting
aye, and fifty-seven voting nay.

Mr. Peck: I move that Section 7 of the report of the Com-
mittee on Schedule < nd Ordinance be amended by adding the fol-
lowing thereto, that the amendment last read by the Clerk be added
as a paragraph to Sec. No. 7.

Mr. Hole: I do not wish to discuss this question more than
just to say that it was decidedly the understanding and expectation
in the Committee that this should come before this Convention.
I think it is fair that this should be considered as an original ques-

302 SOUTH DAKOTA DEBATES 1889

tion here without being prejudiced in any manner by any action
that the Committee may have taken.

Mr. Van Buskirk: I don't know at this present time the ef-
fect of adding this as a section. I would like to call attention at
this time so that it would not control some future additions that I
would make to it.

Mr. Hole: Would you allow me one suggestion? Why not
just number this Section 7 a sub-section?

Mr. Van Buskirk: I will call the attention of the Convention
to a few suggestions which have been overlooked. For instance,
Sec. 2. Nominating State officers, Representatives in Congress,
and Judges of the Supreme Court shall be made by any State Con-
vention and certified to by the Chairman and Secretary of such
Convention. After this wTord Convention"" I would insert the
word "substantially ' so that it would not stand to be a tech-
nicality, and every member of the Committee that I have had an
opportunity to confer with they conceded that it would be proper.
We read a little further "Or by any three hundred legal voters in
South Dakota attaching their names to a paper' . Now, there
might be three or four of them circulated with the same proposition.
I would say "paper or papers" ; it seems that that ought to go in.
Then passing from that down to Section 3 , nominations for members
of the State Legislature, Judges and Clerks of the Circuit Court.
I would suggest to strike that out.

Mr. Peck: Yes, Sir. Exactly.

Mr. Van Buskirk: We look a little further down — I would
insert the word "substantially" and following, in the third line from
the bottom, where they say "paper" I would say "papers." In
view of the fact that the election comes on the first day of October,
the inquiry arises in my mind whether that would be time enough
for the Secretary of the Territory to get those returns that would
come to him to be sent back, counted.

Mr. Peck: I simply put it there that we might note it; they
can fix it as they see fit.

Mr. Van Buskirk: Passing that I would desire to suggest
in view of the legislation that will take place in other localities upon
that subject, I don't know whether that would be a subject for this
Convention to investigate, the Judges and Clerks of Courts shall be
chosen from the district political parties, they are of course pro-
vided for

AUSTRALIAN BALLOT 303

Mr. Peck: Allow me to make one little suggestion. What
I think the point that this measure desired was simply this, —

(Calls from different parts of the house of "louder".

Mr. Peck: What we desire to get a vote upon the principal
and consider section by section until after we take the vote upon
the principal. I think the wish of the friends of it is to secure the
b est system of voting that we can possibly get.

The President: Your amendment as made if carried would
accept the whole measure.

Mr. Peck: It becomes a part of the report and then will be
subject to revision just as the other sections of the report are, — •
subject to revision afterwards, to strike it out or modify it.

Mr. Hole: As I take it, under the Constitution, the adoption
of this would make it permanent and would make this law and part
of the Schedule absolutely. We have already adopted or made
law, as far as in this Convention lies the power, all the sections
down to and including Sec. 6. We now have before us Section 7.
It is moved as an amendment to Sec. 7 ; that amendment is carried ;
then on motion adopting the section it would then be just as much a
part of the Schedule as any other section of it. It looks to me if
we urge this question only to get an idea of the feeling of the Con-
vention. If this is only to feel of the temper of the Convention
upon this subject that the matter might be brought forward by
resolution. But in this we are making law,' — wre are making law
when we vote upon this and we cannot afford to vote blindly.
While I may be in favor of some things, I may not be in favor of
others.

Mr. Dickinson: I do not agree with Mr. Hole, and I do not
understand it as he does. I understand that this is an amendment
to Sec. 7 in passing upon an amendment that it becomes a part of
Sec. 7. We do not thereby adopt Section 7, we can re-commit or
assign to a special committee or re-commit it to the Schedule Com-
mittee or take it in Committee of the Whole. I would not vote for
it unless it were to pass under careful review and inspection, being
careful to make it harmonize with other portions of the Schedule.

Mr. Jolley: What is the question before the Convention?

The President: The adoption of the amendment to Section
7, presented by Mr. Peck.

Mr. Jolley: Then it is to take the place of Section 7. Mr.
President, at last, after two weeks of wrangling on this section, we

304 SOUTH DAKOTA DEBATES 1889

see ourselves at the threshold of having passed the finest Schedule
that ever was passed by a constitutional convention, or we are to
the threshold of having it mangled so that its parents won't know
it. I had supposed, Sir, that from the time that this Convention
had been in session up to the present time, judging from the acts
of th's Convention and from the manner business has been con-
ducted that we could get on through as we had begun, careful, pru-
dent men, trying to keep ourselves in the boundary, in the formation
of our Constitution, within the powers granted to us by the Omnibus
Bill. The Schedule as reported by the Committee this morning gov-
erened everything that is necessary, comes right up the line allowed
us by the Omnibus Bill. But when that line is passed the danger
comes. It may be a gratification to the personal interests of some
delegates upon the floor of this Convention to be recognized by
pressing such an amendment as this, without judging of the result
and effect that it will have upon the State of South Dakota. It
may be that some delegate here feels determined to abandon that
straight course that has been our line of conduct up to the present
time and that they will put this Constitution with a Schedule
with an amendment upon it in a position where it will be in very
great danger of being wrecked. Among all the positions it
has been my portion to be connected with in this world, I never was
connecetd with a position, and never had a duty to perform that
was so difficult, so trying and in which more care had to be ex-
ercised than drawing a Constitution passed by the people to be
amended under this Enabling Act, and it may be out of this thought
that we will cease to be a Territory in a short time, and the joy that
South Dakota will soon be admitted into statehood and that the
star of South Dakota will soon be placed upon the national colors,
has effected our good judgment. This I believe, could be carefully
looked into, for, Sir, if there is any doubt in the mind of a single
delegate in this Convention I cannot conceive the reason or theory
that he has; I cannot conceive of the line of logic that he pursues.
I cannot see what construction he gives the words if there is any
question of that kind in the minds of any delegate here as to whether
we have the power to make this amendment or not. We have a full,
free, open and clear course to pursue, but we must be careful that
we do not deviate from that course. Why Sir, this bill here is a
general law, relating to the whole election as provided for in the
Schedule relating to State officers. It relates also to the votes for

JOLLEY ON KXAHLING ACT 305

and against the rejection of the Constitution that we will put before
the people and for the amendment thereto. No, Sir, I undertake to
say without fear of successful contradiction, that there is no power
given us any place in this Omnibus Bill ; there is not a word, syllable,
section, chapter or article from beginning to end which gives us any
right to tamper or interfere in any manner with the election laws as
laid down in the Territory of Dakota in any respect except upon the
question of the adoption and rejection of the Constitution we will
put before the people The Omnibus Bill says: "And all persons
resident in the said proposed State who are qualified vo ers of said
Territories as herein provided, shall be entitled to vote upon the
election of delegates, and under such rules and regulations as said
Conventions may prescribe, not in conflict with this act, upon the
ratification or rejection of the Constitution." Now, Sir, I say under
that language that that is all the language of this Onv ibus Bill that
relates to what we shall provide as rules and regulations for th )
election of State officers, not the election of the several persons
that is attached. But the rule is strict ; the law must be enforced
exactly as it is ; only that and nothing more. You can provide
no rule and regulation that refers to the election of State officers;
may provide rules and regulations for the elect on upon the ques-
tion of the rejection or ratification of the Constitution, but you
cannot go a single ell further; you are barred and can proceed no
further. Why, Sir, this is a very serious question; it may result
in this Convention of raising the question of its powers, it is
frequent in courts that we raise the question of its juris-
diction. When we come before the people with our work ; when
the excitement of the present time is passed and gone; when we s t
down in our homes and consider and look over thus question as the
people whom we represent are now looking at it ; when we come to
such things as it is we- will reali/.e that we have gone beyond the
powers granted to us. Then will conic the rcru tion and regret. Why,
Sir, we cannot arrogate to ourselves any powers except what is
given in the Omnibus Bill and it says what shall be done. 1 read
from Section S to show that the President himself, has the rijjit
if we do not comply with the provisions of the Omnibus Bill, no
matter how large a ballot has been cast in hisConsI union,

no matter how good or bad the1 officers may be that arc elected, if
we deviate from tin- prescribed rule that is given us by a* t •
gress, then the President has the right to consider whether we v.i'1

306 SOUTH DAKOTA DEBATES, 1889

be admitted under that Constitution as adopted, then or not. I
read from Section 8: "And if the Constitutions and governments
of said proposed States are republican in form, and if all he pro-
visions of this act have been complied with in the formation thereof,
it shall be the duty of the President of the United States to issue his
proclamation on announcing the result of the election in each, and
thereupon the proposed States which have adopted Constitutions
and formed State governments as herein provided shall de deemed
admitted by Congress into the Union under and by virtue of this
act on an equal footing with the original States from and after the
date of said proclamation." We are not only to have a republican
State in form but all the provisions of this Omnibus Bill have to be
complied with. So much for our power. Mr. President, this act,
as we all know, was approved by the President of the United States
on the 22nd of February, 1889. It is said that all persons resident
in these proposed States "who are qualified voters as herein provided
shall be entitled to vote. Now, Sir, if there is any deviation of a
single jot or title of the law, complications made to enter into it
or any embarassing cause by which a single voter thereby is
deprived of his vote for or against this Constitution, then you have
gone further than you are empowered to do and you cannot pass
that Constitution because you have so deprived a voter of his
privilege. The President will say, if he assumes the right, that we
have not complied with the plain instructions, that the provisions
of the Enabling Act have been ignored. Sec. 14 of the proposed
amendment reads as follows: "No person shall be allowed to take
his ballot paper out of the polling place, nor, except as in the case
provided for by Sec. Eleven (11), to show it when marked to any
person so as to allow the name of the candidate f6r whom he has
voted to be known, and any voter who violates or refuses to com-
ply with this ordinance shall not be permitted to vote." Here you
go to work into a lot by the Omnibus Bill in so many words to vote
for the ratification or rejection of the Constitution; here you pass
a rule that a man shall not be allowed to vote for State officers and
the Constitution, or its ratification or rejection and if he does not
comply with the rules that he is to have his vote rejected and is thus
disfranchised. Whoever heard of any such thing as that? We have
no power given us for this ; we are formed for one express purpose ;
we are here to amend the Constitution in compliance with the pre-
scribed limitations of the Omnibus Bill, to make such amendments

JOLLEY'S VIEWS ox ENABLING ACT 307

as the Enabling Act allow; nothing more or less. And if there is
any part of that Omnibus Bill, a single line or sentence by which
any Legislative power is granted to the people of this Territory, I
I would like to have it pointed out. Have you the right to pass
this amendment? Why, Sir, a bill before our Legislature has to
be read three times before each house and must be passed by each
house and then go before the Executive of the Territory, who has
the right to veto it. How do we stand here in this Constitutional
Convention; does the mere act of our voting this make it a law5
Have we any power that makes this law ? We go to work and pass
this Constitution voting for it, signing it, and enrolling it and for-
warding it to the place and custodianship of the officer pro ided by
law. Does that make a Constitution? No Sir, that never makes
a Constitution. You not only have to do that but you have to go
before the people first and they by majority vote have to ratify
what you do here. Let us not forget that this Constitution is an
inanimate thing until vivified by an endorsement by popular vote.
You are bringing forth a creature in which the breath of life cannot
be instilled until our acts are done, and you on this floor arrogate to
yourselves to tell a man if he does not comply with that section he
must be disfranchised and his vote cannot be counted. Not only
must the people of this Territory breath life into this Constitution ;
it goes further than that, and a majority vote only creates life.
If the President of the United States hears you have not complied
in every respect with the Omnibus Bill and he puts a veto upon it,
then life is squelched out of it. Until Congress admits us into the
relations of the United States then here is this body without any
power to create any interest in or give any force to this Constitution
which you adopt. It is forward to assume that power that says,
this man unless he complies with this law contemplated in this
amendment he shall be disfranchised ; shall not be allowed to vote,
in clear violation of the written law of the Territory of Dakota.

SEC. 16. Immediately on the close of the poll the judges in
the presence of the clerks of election and such of the watchers and
voters as desire to be present, shall open the ballot box and proceed
to count the number of votes for each candidate. In doing so they
shall reject all ballot papers which have not been supplied by them
as judges of said election, all ballots by which more candidates have
been voted for than there are officers to be elected ; also those upon
which there is any writing or mark by which the voter can-be iden-

308 SOUTH DAKOTA DEBATES, 1889

tified. All ballots voted and counted and those rejected, those
spoiled and those unused, shall be put into separate envelopes
and all these parcels shall be endorsed so as to indicate their con-
tents, and be placed in the ballot box and a return of the result of
the election at the polling precinct shall be made to the County
Clerk or County Auditor, as now required by law for the election
of members of the Territorial Legislature There is a provision,
Sir, that clearly violates the laws of the Territory. We come 1 ere
to -adopt a Constitution and arrogate to ourselves the right to
change fundamental law of the land and say that the votes cannot
be counted. Sir, you are stepping upon the brink of an abyss in
attempting any such power as that. You disfranchise the people
of this Territory and who wants to take that responsibility? I do
not want .that in mine ; to disfranchise them or dictate the manner
in which they shall vote. It is attempting what is in clear violation
of the law. That is base libel upon the reputation of your people
to assume that you have been elected for that purpose or to assume
to yourself the right to put into the Schedule something that dis-
franchises any voter of the Territory of Dakota. Why, Sir, it is not
two months from now until the election comes. You will start a
revolution that has not been equaled. If at the time of the election
you tell the people they must do these things or be 'disfranchised.
Let us tell the Czar of Russia to come here and by his edict say that
the people shall not vote till they vote as he tells them to. There is
no punishment that can be inflicted for violation of the law, I do
not care on what ground or section you put it, no court under
Heaven that would hold an indictment found under that valid for
a single instance. Here you disfranchise a man, — for what? For
something that is trifling, because he goes to work and he shows
his vote, shows how he scratched his ballot; let a man see how he
votes; for that act, that may be done as innocently as any act can
be done by the purest person in the world, and for that act you take
away his manhood ; for that you rob him of his personal rights of
American citizenship ; for that act you put him in a position where
he has no right to say how he shall be governed. Why, Sir, this
question is an appalling one ; this question is one that I approach
with a great deal of dread. I t'o not suppose, Sir, that anything
that I can say will change the result in this Convention. We have
heard upon the streets, no word can stop this act; no reason
can stay this crime and if that is the result I do not care

JOLLEY'S VIEWS ON ENABLING ACT 309

how this has been brought about ; I do not care who is the per-
petrator of this act, I want it, when this act is done, when this act
is passed upon by the people and we have adjourned to our homes
and neighbors and are confronted with our work in this Convention,
that when they say anything to me or about me they cannot say
I did it. Then, Sir, here is the question we are called to vote upon
now ; we are to pass an act which we cannot by any penalty under
Heaven enforce. You arrogate to yourselves the right to disfran-
chise American citizens, — something un-American and unknown.
You are to convict a man of crime, unheard by a jury and without
being tried by a jury of his peers. You say that these judges of
election, two or three of them, have the power to say to this man
if he does such a thing, without trial by anybody, no evidence be ng
given in his defence, no jury, no court; try him and let these judges
with their power pass judgment upon him. Three men responsible ;
no one to guide where any little informality by a single voter \\ill
disfranchise him. This is the ninteenth century and this is a Con-
stitutional Convention framing a Constitution for the people who
have lived in this Territory for nearly a quarter of a century. If
there has been a crime committed, ballot-box stuffing, if there has
been fraud in elections and if there will be at the coming election
you will by the passage of this act do something that you know the
like of which never before occurerd in all Christendom. Three^
judges of election sitting there clothed with such power that au-
thorizes them for a trifling irregularity, to disfranchise American
citizens. The thought is appalling and he who gives them the
right to do it is a party to the crime.

Mr. Peck: I tried to correct my amendment before Mr. Jol ey
got to going. I will read my amendment as I supposed my remarks
would have conveyed:. "That Section 7 of the report of the Com-
mittee on Schedule be amended by adding the following thereto,
this to be considered paragraph by paragraph with the other portion
of said section. This will be considered in connection with it."

Mr. Williams: I dislike very much to prolong the session, but I
feel compelled as my friend Jolley says "to say something"; I feel
that I have something that if I do not say it I will not be satisfied.
I believe it is my duty, representing the people, to speak upon these
questions when I have anything to say. I have endeavored since I
have been in this Convention, as well as my friend Mr. Jolley,— and
it has been an honest endeavor, that I shall speak little. My en-

310 SOUTH DAKOTA DEBATES, 1889

deavor has been and my determination, to be a working member
rather than a talking member. Being so determined I, impart that
determination for what it is worth, to others, to guide us straight to
our work of this Convention according to the powers which we have.
And in order. to arrive at the power which this Convention has we
have to look to the Enabling Act and inasmuch as there are a great
many of us we have looked at it from a great many different stand-
points.

While I believe we are bound by every provision of th's organic
act and that we have no authority to overrule one of its provisions,
I believe on the other hand that this body is not here solely with
delegated powers. I believe that we are in existance and that being
in existence, there are particular subjects that must come before
this body ; particular subjects to be considered and which this body
was brought into existence to consider; that we can go beyond the
rule laid down in the organic act known as the Omnibus Bill. I
believe further, aside from that step this body meets here with all
the powers that any constitutional body goes about its business.
I do not claim that we meet with unlimited or untrammelled powers,
but we meet with certain powers conferred upon us, and within the
scope of these delegated powers we are bound hand and foot. But be-
yond that is a field and that in that field we are at liberty to work for
the best interests of the people who sent us here, so as not to trample
the restrictions imposed upon us by the Omnibus Bill. By the Con-
stitution that was adopted on the 14th of May, I cannot understand
my friend Jolley's speech nor this Ordinance, except we look at it
this way; that a certain committee authorized by that Conevntion,
sitting in that authorized Convention have powers that it does not
in this Convention. We find a provision submitted to this
Convention to become a part of the ordinance of this Convention
from a Committee of which the gentleman is one of the leading
members and if it passes it proposes to do just exactly as the gentle-
man says it is not in the power of this Convention to do, and that is
to put vitality in this Constitution. I read the provision: "The
election provided for herein shall be under the provisions of the
Constitution herewith submitted." That is the provision that the
Committee, of which he is one of the members, brings before this
Convention. That is, that this Convention shall vote certain
propositions putting vitality into the Constitution and making it
a law of the land. With my limited knowledge of Constitutional

W. T. WILLIAMS SPEAKS 311

law, I assert that there is no power under the sun to give it vitality
except the vote of the people when it is ratified. Then that Com-
mittee has arrogated to itself power that it has not got.

Mr. Van Buskirk: Where is that provision that you read?

Mr. Williams: You will find it in Section 7, report of the
Schedule Committee.

Mr. Williams: Now, Mr. President, I wish to say this with
reference to the question before the Convention, that is that these
rules proposed here in this amendment are not for the purpose of
establishing the quafifications or electors. There is a difference, a
material difference between rules governing the deposit of a ballot
by qualified electors by making a law prescr bing the mode of de-
positing the ballot.

The amendment offered in Sec. 7 does not attemp'. in any par-
ticular to say what the qualifications of the electors are, but
excepting the qualifications laid down by the statutes of the
Territory of Dakota; it only proposes to say that the elector,
with all that magnificent and grand power directed to him by the
general government, 'which he undoubtedly possesses, shall deposit
that ballot. That he shall exercise that right to vote, in a certain
way, not in any manner prescribing or limiting the qualifications or
rights as a voter; and if an honest voter it cuts no figure. The
amendment is interposed for the purpose of preventing a dishonest
voter from taking, or stealing I may say, the result of an honest
ballot cast. Now, Sir, I would ask this, is the dishonest voter or
his rights more sacred than the honest voter? The just voter and
the unjust receive alike and are equally protected and guar nteed
at this station in the enjoyment of the highest law in the land, that
of the right of voting. This amendment docs not detract or take
from him one qualification nor add to one qualification. It says
in order that your vote as cast may be cast honestly, and that you
shall n*ot be dictated to or interfered with directly or indirectly when
casting an honest vote, only would require that you comply with
this reasonable request. That is all that it is; it is not law. This
ordinance the gentleman, by < ertain reports made, attempt to make
and establish a law of the land upon certain questions that perhaps
are not of as much interest, yet he denies the right of this Conven-
tion to prescribe a rule governing the rule by which lie exercises
the right, it does not attempt to bridge, only attempts to establish
a rule of action in no sense assailing the fundamental right of in-

312 SOUTH DAKOTA DEBATES, 1889

dividuals But it only prescribes a rule that shall be enforced just
for the time being and it is in fact, most salutary in its effects.
That is, if a voter is honestly intending to cast his vote and cast it
in an honest way, this rule will not infringe upon him in any such
act. But if the is intending to cast a dishonest vote, then probably
in this rule, should it be adopted, he will find little comfort. I do
not believe this Convention has any power to say that this question
shall only be taken up by the Legislative power under this Con-
stitution.

Mr. Sherwood: Is there any authority for the adopting of
this Australian system except what is contained in these rules and
in the Omnibus Bill? In the last clause of Section 3?

Mr. Williams: Without attempting to give a definite answer
I will say this ; whether we get this Australian system or not, I take
it the Australian system in its entirety prescribes the qualifications
of electors. This does not. We have here prescribed the rules
and regulations for voting upon the adoption of the amendment to
the Constitution denying that this Convention can by rule or
regulation prescribe the mode of depositing the ballot for State
officers. I understood that to be the position of the gentleman
from Clay County.

Mr. Corson: I would ask if any county refuses to adopt this
rule, what then ? I am of the opinion that they cannot be compelled
to it

Mr. Zitka: If I should come to the Ballot box after I prepared
myself at the next election according to the Territorial laws in
present existence and offered my vote, not having inquired about
the laws or the manner in which the judges prescribed it shall be
received, not conforming in every minor particular with the law
as proposed in this amendment would the vote be legal or not ; would
the judges have to reject my vote and thus disfranchise me? Now
have we the right to legislate and disfranchise the people, in this
Convention? We are assuming a right we have no right to.

Mr. Williams: I think the judges would be right to reject your
vote. What I intended to say was this ; it being admitted Congress
<says in this organic act that at the same election we may provide
for the election of certain officers, I would ask this question: Where
is the authority for saying, except by violent presumption, that it
was the intention of Congress, after once having granted the
authority and prescribed the rule for one thing that we must provide

AUSTRALIAN- BALLOT 313,

a different set of blanks for judges and clerks, and have an election
conducted under different rules and regulations? I say where is
the authority for that except by violent presumption, except in a
strange interpretation of the Enabling Act? This is a presumption
without a letter or word in this organic act, if we have the power
to prescribe the rules for one and not the other election. They
cannot be authorized by the Enabling Act at the same time. It
must be the same electors, the same judges of election and clerk and
the same ballot. As the Committee, of which the gentleman is a
member have reported this bill, they have adopted that as their in-
terpretation of the Enabling Act. Then the rules and regulations
by the interpretation of this Committee shall, be the same in each
instance. Then the only way out of it is to say that because this
is not granted to us by express words in one instance that we cannot
exercise the powers granted us in another.

Mr. Cooper: Suppose a duly qualified elector should duly
tender a legal ballot to the judges of election and they refuse to take
it, under what law would he procure redress of the judges? I have
not stopped to examine that and I do not care to now, but it is a
question that I will take up and examine in time.

Mr. Van Buskirk: I am, myself in sympathy with the spirit
proposed in this amendment, that is if we have the power to do it
and if I vote against it I shall vote against it seriously and with
the conviction that we have not the power to pass this amendment,
and I shaH regret that we have not. I have listened to arguments
so far. I am sorry to say that my first impressions were not correct ;
from all I can see, and the best light upon this subject that I possess
at this mo'ment, I am forced to take a position upon this floor against
this amendment. I do not know but that some member of the
Committee who had this amendment under consideration, may have
had their .attention called to some other provisions than what I
have; but I am at present constrained to think as Mr. Jolley has
said, that all that we can find in this Omnibus Bill that will permit
us to adopt this amendment will be contained, perhaps, in those
words: "And all persons resident in said proposed states who are
qualified voters of said Territories as herein provided, shall be en-
titled to vote upon the election of delegates and under such rules
and regulations as such Convention may prescribe, not in conflict
with this act."

I am sorry to say that it appears to me from that that if that

314 SOUTH DAKOTA DEBATES, 1889

was the intention of Congress that we should prescribe that form
of ballot only upon the Constitution. Turning from the last section
referred to to Section 24: "That the Constitutional Conventions,
may, by ordinance, provide for the election of officers for a full
State government". I am very much at loss to understand how
we can pass this amendment, adopt it, and make it of any obligator)'
force whatever. Unless I can get more light I am constrained to
believe that if we pass that amendment and I should walk down
to the polls and if I should present a ballot just as I would if we
do not pass this, and if the judges acting in the spirit of this amend-
ment, should reject my ballot I am very much in doubt wrhether I
would have any action against them for refusing to receive my vote
I am heartily in the spirit of this. If I could throw7 some further
restrictions around the method of casting our ballot, I should do it;
I would be glad if any member of this Convention can find any
clause that can give us that power.

Mr. McFarland: What is the meaning of the expression
"Provide for the election of officers"?

Mr. Van Buskirk: As I said, unless there is something more
than is contained in this I shall be compelled regretfully to vote
againts this, because I am in sympathy with the proposition and
phases of it. It don't say we must, but we may provide for the
election; it says we may elect these State officers. I do not think
with a reasonable interpretation of the act, we can do other than
go to work as prescribed I cannot find here authority to adopt
a different manner in which to deposit our ballot than we now have
on our statute books and as I say, if any member can inform me
so I can consistency vote for the measure, and throw some further
restrictions around the ballot, I shall be glad to do so. It is pos-
sible some member may have had his attention called to some pro-
vision other than what has been alluded to and it may help me out of
out difficulty.

Mr. Hur.tley: If we have no power to enforce the provision
of the ordinance, leave that out, and suppose we adopt the rest of
this ordinance which is here recommended, — if we have no power
to enforce this ordinance, the ordinance we are adopting.

Mr. Van Buskirk: The ordinance we adopt does not prescribe
any qualifications of the voters; does not prescribe any manner in
which he shall receive it. The laws of the Territory steps in and
supplies all those matters.

"OLD FATHER LEE" 315

Mr. Lee: I do not wish to discuss this question now; I. wish
to call my friend's attention to the clause he read, Section 3 — the
last part of Section 3. Now, Sir, a few days ago, an unwary clerk
at Washington misplaced the semi-colan and added the conjunction
and, and it cost $200.000 to fix that up when it was d scovered and
years of hard work The matter should have read in the document
that "Fruit-trees should be received without paying any duties,
and he said "fruit and trees" and put the semi-colan after the third
word, and some ingenious Yankee found out he could introduce his
fruit as well as trees, and 'went before the court and the court sus-
tained him. Now gentlemen, I am lawyer enough to see this; you
take the third clause and read it down until you come to the next
to the last conjunction, this is a matter of common sense and common
sense is generally pretty good law. "The number of delegates to
said Conventions respectively shall be seventy-five". Why haven't
we a grain, haven't we more than a grain of common sense except
old Father Lee" and all persons resident of said proposed states who
are qualified voters of said Territories as herein provided shall be
entitled to vote upon the election". Of what? "Delegates", and
now the rest of these four lines don't mean anything for it is dif-
ferent states and made for a different time. We are not in Con-
vention and we cannot do anything as a Convention until we are
met here as a Convention (?). Beyond question seventy-five men
were really elected; now can seventy-five men say we are elected
and get together and make laws and do anything but lay the
foundation, — lay the track upon which to sail this grand old State
into the Union?

Beyond question when you cancel this conjunction and, you
cannot do anything further. The rest of the four lines belongs
down upon Section 24, and merely stuck on there. Sometimes a
little piece of lead will stick to a bullet when we run it which we
cut off to make the ball go straight. I am not ready to make
my little speech.

Mr Davics: I must say that the arguments have been so
scattered that I do not know much more about it than when I came
here this afternoon. The eyes of Dakota are upon this Convention
and whether we have the power or not it seems to be generally
understood that we have, and we are going to l>e held responsible.
As I understand it the election that is going to take- plan' next.
October, — the Constitution of the Territory of Dakota, the Con-

316 SOUTH DAKOTA DEBATES, 1889

stitution which we are allowed to adopt has been anticipated and
the framers of that Constitution designed that such an election
w<ould h ve to take place, as the election that is to take place next
October. The question is. whether we govern, or are we to be
goverened in the mere manner of conducting that election by the
laws of the Territory or are wre to be goverened by the act which
created that election, by the Enabling Act of Congress, — in other
w-ords, does the Enabling Act say to us, "Go on with that election
and have it according to the laws of your Territory" or does it go
on and say "You will have your election and by ordinance elect
your officers", etc.

Now if we can say whether the Enabling Act intended us to
take that course, or say how it shall be conducted, I am not prepared
to say which of these two we are to follow. It seems to me some of
the members of this Committee that have given particular attention
to this matter can confine their argnments to this one point. It
seems to me we had better spend another day on this than murder
the principle involved in this amendment. I should very much
dislike to vote against the principle of protecting the ballot box.
We know this is one of the greatest failures in American politics —
the question of the preservation of the sanctity of the ballot box.
It is one of the most vital questions confronting the American
statesman today. I do not see my way at present to do it. Then
too, there is a great question in my mind whether this lawr, if passed
can be enforced practically if it is put in operation at our next
October election. I want to vote for this but do not see my way
clearly to that determination at present.

Mr. Zitka: I believe that this Convention has no power to
legislate ; has no power to change the general laws as they now stand
upon our statute books. That we have no power whatever, or au-
thority, not clothed with that authority to change the general elec-
tion laws as they are now. If you adopt this amendment as it is here
presented you certainly do that. My ballot may be rejected indeed,
according to this amendment, should be rejected.. Are we not
legislating here ; are we arrogating to ourselves to rule, a right which
was never granted to us ? Certainly you are ; Congress never meant
that this should be done. Makers of the Constitution of 1885 never
dreamed that this Convention, if it ever existed, would go to work
to change the general election laws for the purpose of adoption of
the Constitution. If there is any power anywhere it is in the Legis-

THOS. STER-LINO TALKS 317

lature. I do not think that Mr. Williams studied this question very
dec-ply. I think that for this reason. Yesterday he stated to me
that this proposition in his mind was ill-timed; he didn't think it
was good, and today he is supporting it. Considering the short
length of time in which he changed his mind, I think he did not
consider this as he should have done. Therefore, I state th's that
when you disfranchise the people of their rights to vote you dis-
franchise them of the dearest rights that a man has got. If I am
a voter under Jhe present Territorial laws, I am certainly a voter
when I come to the ballot box to vote on the Constitution. You
change your mode of voting, debar me and deprive me of the right
to vote unless I confoim to certain restrictions which never have
been heard of before; that I must have certain initials upon the back
of the ballot. Is not that, Sir, a practice which should be regulated
to foreign countries ruled by kings and emperors. Is this, a free
country, of the ninteenth century? Is this the United States of
America, of which every citizen is proud of his citizenship? I be-
lieve this Australian system was made for. Australia and not for
this free United States.

.Mr. Sterling: Gentlemen of the Convention; I think I fully
appreciate the discus: ion of this question. I have reached my
present conclusion after not a little thought and had we a little
more opportunity to examine into the question of the rules and
regulations pertaining to elections we would have found something
startling upon the question discussed here today. I had intended
examining the subject at length on that line. I have not had time
to do so. What, gentlemen, does this amendment prescribe? Any-
thing more- than a few rules and regulations governing the i ondiu t
of the election at any particular polling place. I have heard the.
discussion. A few practical things have suggested themsel
my mind, that might happen in any polling place without any
statutory provision upon the subject at all.

Suppose there is a notiie of eleition to be- held in a certain

polling place in a certain ward or precinct, and suppose the manu-

• that election, the judges Of clerks of election shall, on the

morning of the' election before they go to the polls and before any-

i he-re at all, mutually coin-hide-, for the sake- of c Mivenienc e.

although this is the- p!ai e- dingnate-d by law as th<- place1 for holding

.•tion, nevertheless on account of MHIK- e ontingciicy that they

had not t h on ght of,. for convenient c or otherwi; e, remove- it t'

318 SOUTH DAKOTA DEBATES, 1889

other place reasonably convenient to all ; that they made that
change before the polls were open, do you believe that the voters
of that precinct have got reasonable access to the polls at the place-
to which they were removed, that they could come in and say they
were disfranchised because of that ? I think not. Suppose in the
absence of any statutory provision, the judges of the election had
decided that they would not allow the election to be held in that
place that the regulations recorded, that the public order re-
corded; further that they would not allow but one man in the poll-
ing place at a time, except the judges and clerks,' do. you believe
that they would have the right to do it? I do. Does this amend-
ment disqualify or effect the qualifications of the voter in any
degree? No, it does not; it is simply saying that here on account
of a particular element that we have to contend with at this place,
on account of the great number of voters and the question at issue,
it is better that we for this election prescribe these rules and regu-
lations and deem it wise to designate the manner that the voter
shall cast his ballot at the time. Then someone says: "I have the
right to go in with this voter and vote." And the judges have said
"No, the public order and public decency requires that but_one
come at a time to cast his ballot, and the party persists in demand-
ing the privilege until the police power takes hold of him and says
to him "You cannot go in". What is the result? He comes and
says "I am disfranchised". Disfranchisement, indeed! Has he
been prevented from casting an honest ballot ? Far from it. I say
he has not ; I say that just rules as that the judges of election have
the power to prescribe or if not the judges of election, then the
county officers who have the management of the election within
the county or precinct. It is a reasonable rule and regulation for
that particular election. What is this ? I believe that for the most
part it is rules prescribing how many voters shall be in the apart-
ment in which the votes are cast at a time. Nothing more than that .
Nothing more than reasonable rule and regulation, and that in view
of the several questions involved, the officers to be elected, the ques-
tion of prohibition, the question of minority representation, the
question of capital location, these make^this a reasonable regulation
to be made at the present time and under the circumstances under
which this election will be held. There can be no question about it.
Does it decrease the qualification of the voter in any sense? No,
not at all. It does not prescribe the qualifications of a voter, simply

AUSTRALIAN BALLOT 319

embodies the rules under which the election shall be conducted
without infringing at all upon the voters qualification. They are
the same as the laws of the Territory prescribe.

Mr. Sherwood: If a county or towYi refuse to furnish the
places for voters would they be compelled to provide them?

Mr. Sterling: They might.

Mr. Sherwood: Then would that vote be received?

Mr. Sterling: I am inclined to think that they would be re-
ceived so far as that is concerned. Now as to whether such a
ballot will be received or not, whether this is complied with, I say
gentleman, that that does not do away with the desirability of
rules and regulations like these.

Suppose we do not conform with the rules and regulations in
certain polls that the vote is received without, I say that these places
will be comparatively few. The intent will .be for the most part
to follow the rules and regulations prescribed in this amendment
and that the result will be that we will have an honest and pure
election on account of these rules and regulations.

Mr. Van Buskirk: Let me ask a question; the difficulty that
occurs to my mind is this: In place of a simple regulation a man
cannot be permitted to vote any ballot except those tendered by
the judges of election, with certain initia's upon it. Is not that
legislation?

Mr. Sterling: I do not believe that is legislation in conflict
with any legislation in connection with the subject. The tendency
is not towards disfranchisement of men. He has a ticket with all
the names of the men nominated, printed under the rules and regu-
lations. It is his privilege to change that ticket as he desires.

Mr. Van Buskirk: Under the existing laws and .rules and
regulations on the subject as in force now if we add these rules
and regulations, isn't it legislation? is the difficulty that arises
in my mind.

Mr. Sterling: I do not believe that it is.

Mr. Cooper: I desire to suggest this, gentlemen of this Con-
vention, if this amendment can have any force at all it must go to
the extent of repealing the election law of this Territory. If not
the gentlemen who favor the project ask every gentlemen who is
judge of election at the coming election to commit a crime that the
statutes of this Territory provides shall be punished in rrrtuin
ways. The statutes of this Territory provide that certain persons

320 SOUTH DAKOTA DEBATES, 1889

are qualified electors ; that they can vote in a certain way ; that if
their vote or ballot is duly tendered that the judges of election must
receive it and that if they refuse to receive it they are guilty of a
crime and can be punished for so doing. The question that it
suggests to my mind is first, is this proposed amendment legislation,
if so, does it conflict with the laws that we already have and under
which we would operate if this were not added to the report of the
Schedule Committee? Now, the statutes of the Territory provides
over the age of twenty-one years, or any male over the age of
twenty-one years who has declared his intention to become a
citizen of the United States, has the right to vote at any election
within the Territory. It provides what his ballot shall be; that it
shall be upon white paper with the name of the candidates and the
matters to be voted for either written or printed, or partly written
and partly printed. * I desire to ask the gentlemen of this Conven-
tion that if a qualified elector went to the voting precinct within
the Territory of the proposed State of South Dakota, went to the
polls at the place advertised that the polls would be open and
tendered his ballot as provided by the statutes of this Territory and
it was refused by the judges of that election if those judges would
not be guilty of a crime and they could not be punished? I ask
any gentleman, if under our laws as they now exist, if that judge
could not be prosecuted, convicted and punished. I received no
answer. I think that under the circumstances 'I am justified in
answering it myself and if any gentleman does not agree with me
I will like to have him correct me and give reason for such corrections.
My idea is, gentlemen of this Convention, that if the ballot of the
qualified elector was duly tendered in the proper manner and was
refused by the judges of election that the judge who refused it would
be guilty of a crime and that he could be prosecuted, convicted and
punished under the laws of this Territory as they exist at the pres-
ent time, because I do not believe there is anything in the Con-
stitution as it now stands, anything in the Omnibus Bill as it was
presented to us, anything in the Constitution as it will stand when
finally adopted by the people of this Territory, that repeals the
election laws of this Territory as to-day ex'istant. They say it does
not strike at the qualifications of the elector. We will presume,
for the sake of the argument, that this Convention deems it- wise
to require that all electors shall vote upon tickets colored red, white
and blue and the judges of election at the coming election in Octo-

• MR. COOPER'S VIEWS 321

ber shall say that statutes of this Territory prescribes that the bal-
lots must be on white paper. We refuse to accept your ballot be-
cause it does not comply with the statutes of this Territory under
which we are voting; we won't receive them. I ask, gentlemen of
this Convention, if there is any power on earth to punish these
judges for refusing to accept that ballot. I ask you in the name
of reason and common sense the question, and ask every member
of the Convention that if this Convention authorizes, nay requires,
that a man would so vote a ballot red, white and blue, I ask if this
man is not disfranchised ? I have noticed this to be true that when
men are so very free to allege fraud and want to punish crime to
such a great extent when there is no basis for it that they are willing
yea willing and sometimes anxious to override the laws themselves,
to commit a crime themselves and compel the agents of the gov-
ernment under which they live, to commit crime. I am not talking
upon the advisability of this law as to whether or not it \ ould be
a good thing of a bad thing. I believe in throwing around the
election everything that I can in the nature of restrictions that will
protect the ballot and make our elections pure ; I would be in favor
of. a law that would prevent fraud at the polls and would throw
around the voter, conditions that would isolate him from men, when
in the act or casting his ballot. I would be in favor of a law that
would make it a misdemeanor to approach a voter and undertake
to talk to him as to how he should vote, within a hundred feet of
the polling place. I do not believe this Convention has the power
to do it because this is not a legislative body. I cannot vote for
it because when I became a member of this Convention I registered
an oath in Heaven that I would do my duty faithfully and well,
just as I understood it. I do not believe that this Convention has
the power to do it. I do not believe that this Convention, by calling
it Rules and Regulations, can say that a man must bring the initials
of any man or set of officers to the papers to the polling place and
show them to certain parties, even if this Constitutional Convention
desires it should be done, before he can cast his ballot, and why?
Because the statutes of this Territory provide another manner and
another wav of voting. I do not believe we can change these laws
of this Territory. I desire to ask. gentlemen of this Convention,
where t he-re is any power to enforce any of these rules and regu-
lations? Suppose as has been said by other gentlemen who have-
talked upon the other side of this question, many towns and count-

322 SOUTH DAKOTA DEBATES, 1889

ies in South Dakota should refuse to comply with this amendment,
would you refuse their vote? Suppose Tom, Dick and Harry all
over this proposed State should go to the polls and say I want to
vote upon a white ballot. I will write the names upon the ballot
I want to vote for; I do not want the namse of Republican nor
Democrat upon my ticket ; I want the names of my particular can-
didates upon it. It is refused; what will be the result? The next
five years will be blackened with the prosecution of judges and
clerks of election. I say, that in my opinion this is a malicious
scheme. I shall ever wish to prevent any deal of this kind. While
I will go to as great length as any member of this Convention, when
the time comes that we can throw around the ballot box, legally,
new protection and safeguards that will insure purity in our elec-
tions, not criminally but legally, I am heartily in favor of that ac-
tion at the proper time and under the proper conditions. I am not
in favor of this Constitutional Convention assuming that perogative.
The members of this Convention do not even understand, I do not
believe, do not even understand the working of this amendment. I
never lived in Australia, nor Canada, nor England; I don't know
what it is, but it seems to me that it is altogether "too English you
know." I believe in this Union ; I believe in national independence ;
I believe in this country ; I believe that when the time comes when
they have got the power and right to do it, the people will go to
work and declare a bill of this kind if it is necessary. They will
do it in a legal way and then it will be effectual. But if we assume
to legislate in this manner it will be illegal and you at the same time
commit a crime yourselves and ask every judge of election to commit
a crime and at the same time place upon yourselves the burden of
carrying the prosecution. It must necessarily fail.

Mr. Humphrey: It is not my purpose to enter into a legal
discussion of this question nor even to make small of the arguments
that have been presented for I have been very much edified by them.
The few words I propose to say will be in explanation of the vote
I shall cast. While I am second to none in my desire for protection
of the ballot box, while I am in perfect sympathy with every effort
to do that, the question of power, in my judgment, comes under this
Federal law in this clause. I will say in regard to the Territorial
law in regard to regulating elections and as far as any regulation
that this Convention may stipulate or pretend to, or any regulation

MR. HUMPHREY 323

now required by the laws of the Territory, they in no manner dis-
franchise anyone. This is simply a method of procedure in casting
the vote. The latter part of the 3rd clause has been read here to
substantiate the grounds that the ratification of the Constitution
must be under the same restrictions as an election of delegates to
this Convention.

In the sentence preceding that I find specified the restrictions un-
der which the delegates to this Convention were to be elected and the
point to my mind is this: I find there are two different regulations
for two different purposes, — the one for the election of delegates
in which it says the delegates shall be elected and the returns made
in the same manner as prescribed by the laws of the Territory.
Now when we come to the ratification of the Constitution it shall
be under such rules and regulations as this Convention determines.
Now then, we would not be permitted under that clause to make
any restriction or regulation different from the Territorial law for
any other purpose than the adoption of the Constitution, in my
judgment. If we adopted this amendment, we would require two
elections, — one to vote for the officers and one for the adopting of
the Constitution. I think that that is the only thing to which we
could apply it ; that is the only point in which we have the power
to adopt the regulations or restrictions other than those provided
by Territorial law, if we elect officers at the same time. There is
no question about the legality of our providing for an election,
but unless we provide for two elections we could not adopt this
amendment, and not being in favor of two elections, I would not
vote for this amendment.

Mr. Young: Under the influence of its personal oratory and
under the influence of some of the doctrines of some of the speakers,
I really expected to see this Convention break away into the greatest
enthusiastic uproar. Springer builded better than he knew. I
have just two points to make: One is, that it is not the right or
duty to undertake to seek an enumerated power to make this regu-
lation in the Enabling Act. This is part of a Schedule; this is not
a part of the Constitution, and from the very nature of the Con-
stitution" under which that Enabling Act was passed, why it would
be just monstrous to enumerate the powers under which we should
work in drawing up a Schedule and Ordinance. These specifically
enumerated powers are the strict limitations under which we have

324 SOUTH DAKOTA DEBATES, 1889

been working and suffering here. They were brought about and
had reason only on this ground, that the people of that part of the
Territory of Dakota that formed the State of South Dakota had
ratified the Constitution of 1885. A delegated body, such as this,
has nothing in particular to do with it except those things as the
commands in the Act require. They did not, however, ratify the
Schedule and Ordinance ; it was understood that that disappeared
with the action they had in 1885 and that as far as the Schedule and
Ordinance was concerned we had full plenary power as a body, to
bridge over this somewhat revolutionary state of things. The idea
of our laboring under delegated powers, drawing a Schedule and
Ordinance is altogether ou,t of any reason, because here we are
framing a Constitution and we are not supposed to have the powers
of ordinary State legislation. We are not tampering with the Con-
stitutional Act because the people o the State have expressed
themselves upon that point and therefore our hands are off from
the Constitution but when it comes to the Schedule and Ordinance
then we have all the power which "should be left to a people acting
as a body politic which is about to assume the position of one of the
dignified states of the Union. Now, just one other point, — the
point I make is that it is not our duty to take or look for any dele-
gated, distinctly enumerated powers in the Enabling Act in draw-
ing up these rules and regulations in our Schedule and Ordinance;
the other is that we are not, in our Schedule and Ordinance, draw-
ing up or prescribing the qualifications of voters. We are not,
because there is something of a weak, diluted Australian System
of voting. The Australian Ballot System has been considered by
the State Legislatures, I think by every State Legislature in the
Union. This Australian Ballot System has been adopted by the
State Legislatures of at least twelve states without requiring per-
haps an amendment to the State Constitution, so that therefore any
modified form of the Australian System does not presume additional
qualifications of voters and as this system has been adopted by the
different States without requiring an amendment of the State
Constitution, it cannot be construed into any different qualifications
for the voters. The qualification of voters is always prescribed
in the Constitution of the different states and as the adoption in
these different States of this system of voting did not bring about
an amendment of that Constitution I see perfectly clear, there is

CARL G. SHERWOOD 325

nothing like an additional qualification added to the voters in tha
adoption of this amendment.

Mr. Sherwood: I desire to say this as a closing proposition.
I asked the gentleman from Bon Homme, Mr. Williams, what effect
this would have upon questions where the counties refused to hold
this election, and as an answer, as I understood him to say, tha
they would not be compelled to hold them under this Australian
System unless they desired to do so. The same was substant ally
answered by the gentleman from Spink. The object of this system,
if it has an object at all, is to reach those localities where frauds
at the ballot are known to have been perpetrated. I admit that any
rule, or restriction, anything that this Convention would pass,
would be perhaps heeded and obeyed carefully as a rule in this State
of South Dakota, wherever the Board of Township officers lived
whose purpose and object was to defy this law while there was evi-
dently an intent to defraud at the ballot box at hat place if they
was no power that would compel them to yield to this 7aw there
would find the law would be an absolute nullity and of no effect
whatever. If that is true, then this law we are considering, if it
pass this Conven ion is going into effect where there w 1 be no
violation of the law, going to be set aside in all that portion of the
country where there would naturally be violation of the law. I
desire to say that I am in full sympathy with every effort to throw
every safeguard around the ballot box. I think if this Convention
had the power they might pass these rules and regulations. I be-
lieve as the gentleman who has preceded me, that they have not
the power to enforce this regulation to the extent of going into
these preeincts where the law would be violated and compel it to
be respected there; hence I shall vote against the amendment.

Mr. Willis: I begin to see light a little; I begin to find for nix-
own purposes, for the purposes of determining my own convictions
on this subject; I wrant light upon the one point of authority,
whether or not we have the authority. I have felt within myself
— of course I could not .express it judicially, — I have sort jot" felt
within myself somehow, even with the arguments with which we
have been regaled on this floor, to be impressed with the conviction
that the adoption of this amendment , either by intention <"" in fact .
was no restriction upon anybody's ballot , upon the form of any-
body's ballot. The idea to me is exceedingly far-fetched. I tan-
not connect it as having any force whatever in this connection. I

326 SOUTH DAKOTA DEBATES, 1889

have a feeling way down within me that the mere presentation of
that argument is a superfine sort of suggestion of the motive that
may determine the position of this amendment. I am exceedingly
glad for this little light from these lawyers. Of course it is, this
great work is prescribed by Bill Springer's bill. The great work
that we have been elected to do here has been such as to give most
peculiar concern to the lawyers and the judges. We preachers
and the other fellows have not had much difficulty and we feel proud
we have this Convention and that we have a part in it. We feel
that it was particularly now, the lawyers and judges that we want
to hear from upon this one particular point of our authority. I
have no sympathy with anybody who is weak-kneed at all when it
comes to this question of throwing any rational safeguard around
the ballot box. If there is anything, any subject that is popular
today and that is momentiously gaining in popularity it is the
question, the ballot box reform. There may be some here who are
not Australians who recognize the necessity of reform in the Amer-
ican ballot system, to whom the terrorizing methods employed in
some parts of our fair country are perfectly familiar, to whom even the
recital of blackest murder perpetrated at the polls does not cause
a start of surprise who dare stand up and speak against the reform
of the ballot box, but I doubt it. If there is anything that is dear
to the average American it is the right of free ballot, but enough
for that. The one point is, have we authority ; are we simply a set
of manikins dangling upon wires adjusted by Bill Springer 'with
automatic arrangement that with regular time and rhythm go
through our set of dances and contortions? We are not that sort
of a crowd. We want something provided ; call it Australian System
if you will. We are not trying to restrict honest men at all. There
is nothing that can be so construed, except by the most determined,
I may say mendatious distortion to any attempt on the part of
anybody to prevent Jim Jones or Pete Smith from voting as he
pleases. Anything of that characterization is perfectly mendatious
and what we want is light on this question of authority. The
lawyers disagree, and when lawyers and doctors disagree then we
must depend upon our own1 good common sense in great measure
determining these questions. Congress showed us no favor in
this ; this Convention is doubtless as respectable as the othe and
the other as respectable as this. At least we will allow this with

AUSTRALIAN BALLOT 327

a great deal of generosity. Congress did not say so probably for
this you will give us credit. Lawyers disagree upon this proposition ;
I do not think we are ready to vote; I do not want this dropped.
If 1 judge the state of the Convention pulse correctly, taking into
consideration the hour, I think it would down. I would hardly
know just how to vote myself. I think we ought to vote upon this
question intelligently. I move we defer further consideration of
this question until eight o'clock tonight.

Which motion received a second and upon being put to a vote,
prevailed.

Mr. Williams: I move that when wre adjourn we adjourn to
meet at eight o'clock this evening. Carried.

Mr. Peck: I move that we do now adjourn.

The Chairman: The gentleman from Hamlin moves that the
Convention do now adjourn ; those favoring this motion please make
it known by saying aye. The motion prevails ; the Convention stands
adjourned until eight o'clock this evening.

Hall of the Constitutional Convention, Sioux Falls, Dakota,
Friday, July -26th, 1889, 8 P. M. Convention re-assembled pur-
suant to adjournment.

The President: Will Colonel Jolley, of Clay, take the chair.

Mr. Jolley (as Chairman): Gentlemen of the Convention, the
question is upon the adoption of the amendment offered by the
gentleman from Hamlin. What is the pleasure of the Convention?

Mr. Anderson (of Hand) : Inasmuch as there is some question
as to the wording of the amendment before the Convention, I call
for the reading of the amendment as it stands tonight.

The clerk reads the amendment.

RULES REGULATING THE ELECTION TO BE HELD UNDER THE AU-
THORITY OF THE ENABLING ACT FOR THE ADOPTION OR RE-
JECTION OF THE CONSTITUTION AND THE ARTICLE SEPARATELY
SUBMITTED THEREWITH AND THE REPRESENTATIVES IN CON-
GRESS; ALSO STATE AND JUDICIAL OFFICERS FOR SOUTH DAKOTA.
SEC. 1. That at the election to be held on the first day of
October, 1889, the election laws now in force in the Territoryof
Dakota shall apply to and govern such election except as herein
after specially provided.

SEC. 2. Nominations for State officers, Representatives ia
Congress and Judges of the Supreme Court shall be made by u in-
State Convention and certified to by the Chairman and Secretary
of such Convention, according to form number OIK- (1 ) hereinafter

328 ' SOUTH DAKOTA DEBATES, 1889

provided, or by any three hunderd (300) legal voters in South Da-
kota attaching their names to a paper nominating candidates and
filing the same with the Territorial Secretarv.

SEC. 3. Nominations for members of the State Legislature,
Judges of the Circuit Court and Judges of County Courts shall be
made by any convention held in legislative and judicial districts
or county for which any such officer is to be elected, and certified
to by the Chairman and Secretary, according to form No. 2. here-
inafter prescribed, or by any one hundred legal voters of any legis-
lative or judicial district or county, by attaching their names to a
paper nominating such officers, and filing the same with the County
Clerk or County Auditor to which such nominations refer.

SEC. 4. All certificates of nominations and nominating papers
provided for in Section Two (2) shall be filed with the Territorial
Secretary by the fifteenth day of September, and all those provided
for in Section Three (3) shall be filed with the County Clerk or
County Auditor by the twentieth day of September, 1889, and no
certificate of nomination or nominating papers shall be acted upon,
except accompanied with the consent in writing of the person or
persons therein nominated, provided that in case of death or resig-
nation, the authority making such nomination shall be permitted
to fill such vacancy by a new nomination.

SEC. 5. The Territorial Secretary, on the receipt by him of the
nominating papers hereinbefore mentioned, shall forthwith transmit
true copies of the same to the County Clerks or County Auditors of
the several counties in South Dakota.

SEC. 6. The County Clerk or County Auditor rhall. after the
expiration of the time for receiving the nominating papers, forth-
with cause to be printed such a number of ballot papers as will be
sufficient for the purpose of election, and.the number necessary for
each polling place shall be bound or stitched in a book of convenient
form, and the County Clerk or County Auditor shall cause to be
printed in English, in large type, on cards, instructions for the
guidance of voters in preparing their ballot paper; such Clerk or
Auditor shall furnish ten (10) copies of such instructions to the
Jvidges of such election precinct, and said Judges shall cause them
to be posted both inside and outside of the polling place, and said
County Clerk or County Auditor shall, as provided by law, cause to
be delivered to the proper Judges of election the ballot box and all
poll books now by law required or by this ordinance required to
conduct and complete the election, also the ballot papers, at least
two (2) days before polling the vote ; and shall cause to be published
in each newspaper in the county a true copy of the ballot paper and
card of instructions, said publication to be in the last issue of said
papers before the day of voting.

SEC. 7. Every ballot paper shall contain the names of all can-
didates for Representatives in Congress, State and Judicial officers,
and members of the Legislature, and the name of the political party

AUSTRALIAN BALLOT AMENDMENT 329

to which each candidate belongs; ass<> tin- form of the ballot for the
adoption or rejection of the Constitution and the articles separately
submitted therewith as provided in this ordinance.

SEC. 8. Each polling place shall be furnished with a sufficient
number of compartments, in which each voter, screened from ob-
servation, shall mark his ballot paper, and a guard rail so con-
structed that only persons within such rail can approach within
ten ( 10) feet of the ballot box, and it shall be the duty of the Judges
of election in each polling place to see that a sufficient number of
such places be provided and shall appoint a person to guard the
entrance to such compartments and he shall be paid the same as
Judges of election.

SEC. 9. The voters being admitted one at a time for each com-
partment where the poll is held shall declare his name, and ~v\ hen
permitted by. the Judges to vote, his name shall be entered on the
voters' list and he shall receive from one of the Judges of elee n«n
a ballot paper on the back of which the initials of one of the Judges
of election shall be so placed that when the ballot paper is folded
they can be seen without opening it, and the Judges of election shall
instruct him how to mark his ballot paper.

SEC. 10. The voter, on receiving his ballot paper, shall forth-
with proceed to one of the compartments of the polling station and
there without undue delay, not exceeding five minuets, mark his
ballot paper by putting a cross (X) in the space to the right hand
side of the name of the person for whom he desires to vote and if he
desires to vote for any person who:-e name is not on his ballot paper
he may write or paste on his ballot paper the name of the person
for whom he desires to vote, and shall thenfoldup his ballot paper,
so that the initials on the back can be seen without opening it
ascertain that the initials are on it and that it is the same ballot
paper given to the voter, and shall then place it in the ballot box
and the voter shall quit the polling compartment as soon as his
ballot paper has been put in the ballot box.

SEC. 11. The Judges of election, on the application of any
voter who is unable to vote in the manner provided, shall assist
such voter by marking his ballot paper in the manner d CM red by
such voter in the present e of the persons permitted to be in the c -om-
partment or< upied by the Judges and no others, and shall place
such ballot paper in the' ballot box. and when the Judges of e!e( tion
shall not understand the language spoken by the voter claiming to
vote, they shall swear an interpreter, who shall be the means of
communication between them and the voter with reference to all
matters required to enable su< h \ oter to v ite.

SEC. 12. A voter who has inadvertently dealt with the ballof
paper given him, in such manner that it cannot be conveniently
used, may, on delivering the' same to the Judge's, obtain another
ballot paper in place of that so delivered up.

SEC. 13. Any voter refusing to take the- oath or affirmation <>f

330 SOUTH DAKOTA DEBATES, 1889

qualification as required by law, when requested to do so, shall not
receive a ballot paper or be permitted to vote.

SEC. 14. No person shall be allowed to take his ballot paper
out of the polling place, nor, except as in the case provided for by
Section Eleven (11), to show it when marked to any person so as
to allow the name of the candidate for whom he has voted to be
known, and any voter who violates or refuses to comply with this
ordinance shall not be permitted to vote.

SEC. 15. In addition to the Judges and Clerks of election,
one watcher at each polling precinct for each political party pre-
senting a candidate or candidates for the suffrage of the voters and
no others shall be permitted to be in the compartment occupied by
the Judges on election day, and such Judges, Clerks and Watchers
shall, before entering upon their respective duties take and subscribe
to the following oath or affirmation;

I, John Jones, do solemnly swear (or affirm) that I will keep
secret the names of the candidates for whom any voter may have
marked his ballot paper in my presence at this election, so help me
God.

SIGNED: J. J.

Sworn or (affirmed) before me at this

first day of October, 1889.

Justice of the Peace or Judge of Election.

SEC. 16. Immediately on the close of the poll the Judges, in
the presence of the Clerks of Election and such of the watchers and
voters as desire to be present, shall open the ballot box and proceed
to count the number of votes for each candidate; in doing so they
shall reject all ballot papers which have not been supplied by them
as Judges of said election, all ballots by which more candidates have
been voted for than there are officers to be elected ; also those upon
which there is any writing or mark by which the voter can be iden-
tified; all the ballots voted and counted, and those rejected, those
spoiled and those unused, shall be put into separate envelopes, and
all those parcels shall be endorsed so as to indicate their contents,
and be placed in the ballot box and a return of the result of the
election at the polling precinct shall be made to the County Clerk
or County Auditor, as now required by law for the election of mem-
bers of the Territorial Legislature.

SEC. 17. All expenses incurred under these rules to be a charge
against the county and audited and paid as other claims against
the county.

Mr. Anderson (of Hand): I shall not attempt to discuss'the
legal aspect of this question at this time but I wish to state some of
the reasons to this Convention why I am in favor of this amend-
ment. In the first place the people whom I represent are all unan-
imously in favor or this proposition, upon the adoption of a prop-

MR. ANDERSON OF HAND 331

osition of this kind, possibly with the exception of a few political
bulldozers and ticket peddlers at two dollars per day will receive
the support of most men; men who boast judiciously and expe-
ditiously selling their votes for every election of the last seven years
will not be pleased should this Convention pass this amendment. It
is for the purpose of blocking the wheels for this class of men, gentle-
men of the Convention, that I am in favor of the adoption of this
proposition. At the last general election held in our county, in
one township it is estimated that there was expended to purchase
votes, $1100. and gentlemen, it was openly and publicly done in a
great many cases. In another township in our county and they
cast votes in that township, there was as high as $1000. expended
to purchase and \nfluence votes. Let me say to you gentlemen,
that in that particular township, not receiving the price for their
votes, at the last election held in our county for the election of dele-
gates who are here on this floor, they refused to vote for the candi-
dates who were before them for election, but met in Convention and
instead of voting the ticket that they had provided, they voted for
cat li other, and when questioned as to why they adopted that
report, their reply was: "Why, the candidates didn't put up
anything; they didn't even come around and set up the beer."
Gentlemen of the Convention, this is only a part of the state of
affairs existing in the Territory of Dakota. I am informed that it
exists, not only in the County of Hand, but that it exists in other
counties. Now, gentlemen of the Convention, the opportunity
is offered for you to place yourselves upon record and so far as the
legal aspect of this Convention is concerned, I am satisfied myself
that we have the full power of authority to adopt a proposition of
that kind. I shall not detain you by giving my reasons for having
arrived at that conclusion. We have heard a good deal in the last
four or five years about the purity of the ballot, an honest ballot
and a fair count, and you, gentleman, having expressed your views
of an honest ballot have an opportunity tonight to place yourselves
upon record as to whether or not you are in favor of an honest ballot
and a fair count. I do not expect, gentlemen of the Convention,
to appear in public again, in Hand County as my friend from Cod-
ington remarked, — this is my last appearance. I have no political
ambitions, aspirations, and if I had I belong to the hopeless mi-
nority. But I do wish to see adopted, a plan that will pivservr tin-

332 SOUTH DAKOTA DEBATES, 1889

purity of the ballot box; that will protect the voter, the laboring
men., the employees of the corporations in an independent exercise
of the right of suffrage. I hope this Convention will put itself
squarely upon the records. This system is being adopted by quite
a number of the states. I prophesy it will be in every state in
this Union. Probably gentlemen, you will see the time if you vote
against the proposition to protect the ballot you may be ashamed of
the vote you cast against it. After what I have seen practiced in
the Territory of Dakota I do not intend to let an opportunity pass
to cast my vote in this Convention upon this proposition and
squarely in favor of it.

Mr. Dickinson: I have had nothing to say this afternoon,
because I have had considerable to say in the Committee in the con-
sideration of this subject and because I was very anxious to see
what might be said upon the other side, that there might be the
fullest expression, the strongest expression possible in opposition
to this measure which has been proposed. Mr. President, I must
say that I was amazed at the tenor of the arguments and upon the
result of the arguments upon those who were present, gentlemen,
who have been active as I have. I confess freely, I myself have
been active in the endeavor to form this measure and secure the
adoption in this Convention of these rules. For by the tenor of.
these addresses delivered this afternoon and apparently by the
conviction produced upon the minds of many, we may be open to
the charge of committing the greatest offense against the rights
and interests of the people of the State of South Dakota. I have
been contending, not for attempts to provide for wholesale bribery
and attempts to so demoralize and corrupt the election laws that
it might be possible to illegally vote to corrupt the vote and
thus as unerringly as the sun follows dawn to place a stigma upon
the fair name of our state because thereof. But have been contend-
ing, Mr. President, by an honest endeavor to provide in some measure
for a just, honest, pure vote, for a just, true and fair expression of
our people of the State of South Dakota and their will in reference
to certain great issues that come before us in the 'first days of
October next. We have in this hall as high and honorable and rep-
resentative a body of men as you could get together and we are met
here for acting or proceding upon questions of vital importance
and far reaching in their trend; a bodv of men such as will never

MR. DicKiNsoN 333

come together again in the history of this State from now on to the
end of time, taking into eons deration our business, (iravf inter-
ests over which the hearts and minds of the honest people of
South Dakota burdened and anxious and the decision they
desire most earnestly shall be true and right and just;
true expression of the minds and wills and purposes and in-
tents of the people. And Mr. Chairman, ) am not a lawyer, but I
desire to call attention to the line of attempted argument that has
been brought up. All of these lines of arguments and this outpour
of. eloquence has been upon us, not for any attempted corrob-oration,
not for anything openly unjust because we are attempting to pro-
vide for purity and a just expression of the minds and will f the
people. The force of the arguments to this proposition, made and
proven apparently to the satisfaction of those who have spoken,
is that we are here without power to do anything for the protection
of the ballot box, 'but I wrould venture in the opinion that we have
the power, that it comes to us from three fold sources. First, that
we have the powers delegated to us in this Enabling Act from the
Congress of the United States as to the larger parts of the inter-
sets involved in the election this fall. There has been no dispute
of the claim that we have the power and even those who have spoken
upon the other side have conceded that we have the power as to
a submission of the Constitution to a vote of the people, as to the
submission of the amendments relating to the minority represent-
tion, as to the submission of the amendment relative to Prohibition,
as to the submission of the question of the location of the temporary
seat of government; there is no question but that Congress gives us
full power to make rules governing the election relating to those
topics at all. It is conceded by every lawyer that I have heard
speak upon that subject that it was a part of ordinary wisdom o
conclude that when making that provision it was intended, when
it states that you would also provide election at the same time for
State officers, it was simply presumed to say that if we made laws
for governing one part of the elec tion, it might be presumed to i ovu r
the remainder of the- issues of the election held at the same time
but there is one consideration that I wish to call attention to and
that is this: Speaking of the election of the delegates to this Con-
stitutional Convention in the election of the 14th of May. the
Enabling Act spe< ilics that that election was t" take place under

334 SOUTH DAKOTA DEBATES, 1889

the rules of the Territory of Dakota. Then passing from the Con-
vention when it was assembled, was required to submit the Con-
stitution to the people, says that they may vote for or against the
Constitution, under such rules as the Convention may prescribe.

Mr. President, why is it that the Enabling Act specified what
election laws shall govern the election of delegates in the spring.
I venture to guess that it was to determine what laws should
govern because there would be no body in session; it would be
before the Convention had existence ; therefore Congress points out
what laws' shall govern and when we are assembled in Constitutional
Convention it says the Convention might provide rules for the elec-
tion upon the proposition, and when we come to the provisions of
the 24th section of the Enabling Act for the election at the same time
of the State officers, which we may by ordinance provide for and
for the judges at the same time. Again nothing is said in reference
to the laws that shall prevail and govern the election of State
officers. Why is the Enabling Act silent there? I take it, Mr.
President, that it is because it was deemed that this Constitutional
Convention, having come together and having been thereby em-
powered to provide for the election of State officers, would without
provision be provided with power to make the rules that should
govern that election. It was silent with reference to the body
that would be in existence and failed to provide for those election
laws. It speaks definitely of what election laws should prevail
when no such body was in existence and when we come together
and provide for the election of officers, here it leaves us to oiirselves
to say what rules shall govern. It was the intention that those
rules should be the rules of the Territorial election laws, if that
law was to guide, I believe that that would have been definitely
stated.

The Enabling Act has not been carelessly drawn. What I say
is this: Those men knew what they were doing. I believe that
they knew what they were calling into existence. This Constitu-
tional Convention, made up of select representatives of the people
of South Dakota, they honored us and honored themselves enough
to say that we could be trusted to provide them ourselves. You
may by ordinance provide the way for the election of State officers
at the same time, by. ordinance, — and that ordinance in the opinion
of the best lawyers carries with it the power to pass the rules

MR. DICKINSON 335

governing the election as well as the power to submit the names of
the officers that shall be elected and the offices that shall be rilled.
Now, Mr. President, I insist upon that point, that if it had been as
essential as these men would have us believe it is, they would be
so anxious that we do nothing to endanger our prospects for we
must not forget they say that the President may shut us out at
the time when statehood is just within our grasp. If it had been
so essential that point would not have been left unguarded. We
have found as we have been working carefully through this Con-
stitution, we have found our point carefully guarded, we have found
that they made no great mistakes. I can easily believe, and most
thoroughly and sincerely believe that even had Congress gone so
far as to say that we might have provided for our own election we
could have been safely trusted to do it and that if we had done so
we would have conducted the election under the Territorial law.
We have no right to make the presumption that we must hold the
election under the State law. This language is compulsory when-
ever mention of Territorial business is made as the adoption of
the Constitution and the amendments severally submitted, the
extra provision for the temporary location of the capital and the
like. Mr. President, I am not a lawyer; I will confess that I com-
menced studying this point because the people were interested and
were asking questions about it, whether the laws of the Territory
would prevail, away last March, — asking about that and anticipat-
ing that we would have the power to provide the rules for the elec-
tion. I will confess that I commenced studying it myself and ask-
ing the opinion of every lawyer I came in contact with and have
taken it to every man that is recognized as being authority on that
subject. I have in case after case, found the unhesitating answer,
that it gave us all the power anybody could possibly assume ; that
the complete power was our's to provide for this ballot. To pro-
vide for an honest election against which there should be no sus-
picion or taint whatever. Gentlemen, I would have such a rule
here today as a body representing the several states to be. We
come here under a government in which majority rules and there
is under the God of Nations no higher authority than the will of
the majority. We are proud of it ; we want that the majority shall
rule in this. We come as agents of and representing the majority
of the people of South Dakota. We have met in Convention so to

363 SOUTH DAKOTA DEBATES, 1889

speak, as embassadors of the majority of the people of South Da-
kota, cognizant of their will and sentiments and we are supposed
to be here to express it for them and if the majority of the delegates
belonging to this body shall deem it the part of wisdom and within
their powers and province, that decision will be the decision of
the people of South Dakota. Any decision or vote passed here
today embodying our best wisdom and discretion, bearing upon its
face the evidence of honesty and sincerity of purpose, will merit and
be clothed with the dignity of an expression of the wisdom of the will
of the people of South Dakota as a matter of law. We are sent
here by the choice of the people to make or finish and adopt a
Constitution a greater, graver or more serious work than that never
has been enacted in the history of any nation or any state. They
demand that of us and expect and trust us to do that and if the
majority of this Convention I say shall decide that it is wise and
best to pass certain election laws for the government of the election
this fall it is the recommendation and expression of the will of the
majority of the people of South Dakota. I know a paltry few,
an insignificant few, will not endorse our actions, but it will be so
recognized by the people. When a few years ago the Constitution
of 1885 was submitted, when we had no State, when we had no
authority, when we had no power but that which the people gave
us, when the Constitution was provided and submitted, we had a
Schedule and Ordinance providing for the manner of election. The
people solemnly and carefully observed those rules and we never had
a more conscientious election than that when it was preceded
under by the people who recognized it as the expression of the ma-
jority. Mr. President, at this time, when graver issues are at stake,
when there are important issues to be decided, I venture to believe
every honest delegate upon this floor agrees with me that when we'
go before our people with this amendment as a part of our Schedule
and Ordinance that the people will respect the recommendation
of this Constitutional Convention ; that they will support earnestly
and carefully, respect all rules for that election that we recommend.
For they know this: Some of the delegates here on this floor seem
to have forgotten that this is not in the interests of corruption, is
not anything dishonest, anything unseen ; it is honest and expresses
their will ; it is what they want. They want to do away with some
of the baneful pernicious practices at the polls, the greatest inter-

MR. DICKINSON 337

ests of the Territory want it done ; the grSat mass of the people of
South Dakota are loyal to civil purity and are opposed to bribery,
corruption, intimidation and fraud. We need not fear to trust
ourselves, Mr. President, to trust ourselves to the people for any-
thing that we enact, as I say, even as their representatives. We
will have no fear to submit to them any enactment which is an
honest and true expression of their minds and wills to their suffrages
in the election in October. Mr. President, I have filled with wonder
at the men of straws, that anxious men, members of this Convention,
have set up and made war upon this afternoon. The first of these
is the one where it is said that if we passed this bill, endorsed this
provision and adopted these rules that Mr. President Harrison, when
he learns that these were the rules under which the election was
conducted will refuse to admit us as a State. Mr. President, I
am astonished that any intelligent man will undertake to make
use of such a proposition. That we made an honest attempt to
secure an honest election, that the people were accustomed to vote
by this means, that they did so vote by the rules and measures that
were eancted to promote purity at the ballot box and discounte-
nance bribery, intimidation and coercion; therefore, because he had
reason to believe that the election pronuunced the expression of the
sentiments of. the people of Dakota, therefore, he would refuse to
admit the State into the Union. I would say attempt it if the bal-
lot boxes were left open, then left as they have been, subject to
all charges of corruption that they have been, how those men use
that insane argument and bring it forward expecting any intelligent
man to believe it is beyond my comprehension. I have greater
confidence in the President of the United Staes than this. I would
be ashamed to even meet the powers that be if I, for one moment,
believed that that jeopardizes the causes of statehood to attempt
to have a pure election next October. The other man of straw
that has been set up here is this, that we are aiming a blow at the
right of suffrage, disfranchising voters by prescribing certain rules.
Mr. President, I would ask any man on this floor, who is disfran-
chised by this movement. A re we opposed to any rules we do not
feel called upon to com ply with them, we do not take tin- trouble to
go and secure a ballot or if the officers of the election refuse to
prefer charges against them. The cause tomes up for hearing.
we are put on the stand, no judge in South Dakota would convict

338 SOUTH DAKOTA DEBATES, 1889

on that charge (?). Were I a lawyer, I should hesitate very much
to jeopardize my reputation as a lawyer by such a statement as
that. The answer would be and the answer that would silence
all objections, that that man would have the opportunity to take
a ballot the same as other men took one, that was prepared for him,
that contained all names of all candidates and every proposition
to be submitted to the people, that he might have an opportunity
to take that by himself and without being overlooked, and without
intimidation or coercion to make it right, to make it just exactly
what he wanted it if he was not pleased with the regular nominees
to strike them all off and put in whatever he wranted. He could go
and deposit the ballot and exercise the right of suffrage ; one man
could do that and every man required to do it. Why? In order
that that man might be protected in the free exercise in his own
right of suffrage and demand that every man might be protected
in his free exercise of suffrage, the proposition is in order that no
man can hold over another the whip and use intimidation on that
if he did not vote so and so, such and such would be the result.
On the other hand, going by himself he makes up the ticket as he
will without knowledge of anyone and beyond power of anybody
to coerce him afterward. This is protection of that voter, the pro-
tection of every voter, this is freedom secured as far as in our power
to secure it ; this is for the interests of that man and every man
and my friend here whom I respect and whose nationality I respect,
would be deprived of no right of suffrage. He would have every
opportunity to vote for anybody he might desire.

Mr. Zitka: Not if he voted according to the laws of this
Territory.

Mr. Dickinson: If he voted as every other voter voted and
as he should vote. There is one other point, Mr. President, that
has been brought up, that if we recommend such rules and the
people fail to pay any regard to them it has been openly said by
those who may be citizens of this town that it would not be respected
in Sioux Falls and other places like this and what is the use of passing
that would not be respected. I repeat the facts stated in my open-
ing remarks the honest careful observation of the former Consti-
tution I have firm faith in the people of South Dakota, that they
would pay no less deference to the recommendations and rules ap-
pointed by this Constitutional Convention. Mr. President, there

MR. CLOUGH TAKES THE FLOOR 339

is in these rules, if passed by this body the power of self endorse-
ment. No one has the right to assume in Sioux Falls or anywhere
else in South Dakota the people in South Dakota would not sustain
us in this amendment passing such restrictions. There is nowhere
else that we have stronger pleas for a passage for this or a similar
measure than to the people- of Sioux Falls. We have had from no
other locality stronger statements made that we were undoubtedly
empowered to take such action and that it was demanded of us
to make some such rule. We take this as self-evident there will
be a larger number of citizens here that will be interested in seeing
these rules applied and it will be partially an incentive to diligence
on the part of those who control elections in this city or anywhere
else in South Dakota not to refuse to adopt and put in force these
rules and regulations, which other parts of Dakota are using and
which are intended to secure a fair expression of the will of the
people. If anybody disregards these rules in what interest will
it he, why willfully do it? WTill it be in the interest of purity and
true suffrage of the people? No, it will be in the interest of cor-
ruption, bribery, false election and false return. Mr. President, we
have said that great interests are coming up for decision. I wish
to see that every delegate here and every intelligent citizen who
has pure and honest intentions to care for the will of the people
enough to be in sympathy with this amendment and thereby let-
ting the people of South Dakota know that the great mass of the
people demand and expect something of this kind. There has not
been a day since we have been here this long session that there has
not come up to us letters and petitions requesting that we pass some
such law or provision as this governing the election this fall. We
know what the interests of the people are ; we know what they ex-
pect and we are here to put ourselves upon record upon one side
or the other.

Mr. Clough: There has been a great deal of honest, earnest,
inquiring talk here this afternoon. One thing I think has been
settled and that is this, that this Constitution has vested in it the
authority, let me go back, I do not want to say vested authority.
We have heard a great deal about the Omnibus Bill conferring
authority upon us; gentlemen our American citizenship confers
upon us all the authority and perogatives of American freemen.
Our Omnibus Bill takes from us nearlv all of them, it confers noth-

340 SOUTH DAKOTA DEBATES, 1889

ing, it takes from us, and in the shading process it takes,
some; it leaves few. I could not understand from any talk which
we have heard since we have been in Convention how it is that our
powers were taken forpn us, and a little something was left in their
stead ; the rest was conferred upon us. I think this is the difficulty,
whether or no we have the power to regulate the elections of the
officers to be elected this fall. It is certain that we have the power
to protect the election for this Constitution. I want to say to you
gentlemen, that there is a deep and earnest solicitude throughout
the entire length and breadth of the Territory of Dakota that the
election upon the Constitution and these amendments shall be
a most honest and fair one. I have canvassed this Territory well
from east to west, from north to south. Pardon me if I say that
there is no solicitude concerning the election of the officers that
shall be the nominees of the party. They believe that the parties
in this Territory are able to handle all those issues either under
the present existing rules or any that this Constitutional Convention
may adopt; in other words that the men who pass the crisis of the
Convention will be sure of their election. I say to you that the
better men and the better women of the Territory are mightly
solicitious for amendments to the Constitution ; that the 24th
amendment arouses the Farmers' Alliance solicitude ; others are
solicitious for the 25th. Now if we can protect the officers who are
running because of the election that is provided for in this Omnibus
Bill we ought to do so. I say, gentlemen, every man on this floor
is for a time vested with the responsibility of lawyers. I begin
to feel with all my reverence for lawyers that the biggest man on
this floor cannot be above suspicion of legal quibbling over this
proposition. Most of you have admitted that you have the right
to do this thing and gentlemen, what we have the right to do this
Territory will hold us responsible for doing ; what we have the right
to do if we do not do that we shall be recreant to our trust in the
degree that we sleep upon our rights. If we have no right to hedge
and limit the election of the officer, then let us resubmit this sect:' on
and send it back and as other men have furnished testimony as to
the characteristics of the voters of certain localities of our State,
I am constrained to say this that during the few years that I have
been in this Territory it seems to me that I have come in contact
with the most magnificent matured manhood that I ever met.

MR. CLOUGH 341

It seems to me that I never met so high an aggregate of intelligence an
and moral attributes as characterizes the general people of the State.
We have heard the moral character of the voters of Dakota stigma-
tized, heard them called thugs and all that sort of things, yet I
stand here and plead to you, if there is a cause for such an in-
dictment to rest upon the voting population of our State, — my
friends I stand tonight to plead with you to protect from such
hands the Constitution that we are to submit. The amendments
on Prohibition, the amendment on Minority Representation, and
the rights of the citizens of 7, I believe, of Dakota's cities for an
honest ballot for the capital location. I little thought that I would
say very much on this question until I heard from the gentleman
from Beadle ; when I heard him criticise and stigmatize the voters
of Dakota as he did, I appeal in the name of God for something to
protect us against them. I said I will stand on this floor in defense
f or he knows Dakota as I have not known it ; if he finds such indict-
ments against the voters of Dakota. I have not found it ; he as a
lawyer and politician knows various people as I do not know them
for I want to say to you that a minister only sees the better side
of people ; a man never shows his mean side to the preacher ; he is
afraid he may be called upon to bury him sometime and he wants
him to give him a nice kind of a eulogy. I say you have heard h m
and I come to you to say in the name of this Constitution, dear to
the people of this Territory, dear to its men and women,— I come
to plead that you hedge it about ; set guard over it and protect it
and do not allow the men that he tells about to dominate or control
the election upon the adoption of the Constitution. If they
, must have that privilege with the officers. If we have got
them in Dakota — I do not believe that we have got many of
them, but if you have them by the tens of thousands judging
from what I have heard here today, if you have got them I do
not believe many of this body yet believe this always must
be. Take care of this Constitution. What can we do about
it? Let us, if wt- cannot do anything else, re-submit it with
instructions to the Schedule Committee.' .Apply this principal
for in its working it deserves honorable mention and require
of every member of this Convention and of this Territory to submit
to it until we do find some other way. I appeal to you if there is
scarcely a man who loves this commonwealth and these gentlemen

342 SOUTH DAKOTA DEBATES, 1889

love it as just that ; if there is scarcely a man that does not say, give
us something in the nature of a reform of our ballot system. Now,
gentlemen, in the name of the Omnibus Bill one thing more that
is perfectly astonishing; we have heard of technicalities; one Com-
mittee to which I belong brought in a report in direct defiance of
the Omnibus Bill. It was passed without a dissenting vote. The
Constitution says that there shall be three times as many repre-
sentatives as senators. We brought in 45 senators and one hundred
and twenty-four representatives. It says that there shall be in
each senatorial district, three epresentatives, but you have not
done it. In some there is six or seven and in some there is only
two — possibly in none less than two — I was going to say in some
there was only one. Now, .gentlemen, this standing on techni-
calities is altogether too thin a thing if you can protect my friends
that are running for the Legislature, isn't it reasonable to suppose
we can protect the Constitution in the proposition as true as we
can protect the interests of Sioux Falls and these other places for
the capital? I have heard several say within the last week, "Mr.
Clough, give us a straight, honest ballot; that is the only thing to
give us the fair show with all these other conflicting interests."
Now, gentlemen of this Convention, in the interest of all these
issues and good government give us these safeguards and this pro-
tection to the ballot box secured by this proposed amendment.

Mr. Van Buskirk: I came into this Convention as I have said
once before today, thinking that we could adopt this or some
similar amendment with the report of the Schedule Committee.
The time was long before this question of the Australian system of
voting began to be agitated in this Territory I had given it thought
and felt interested in something of that character being done. The
more I have listened to the arguments, the more carefully I have
canvassed the Omnibus Bill, the more I have become convinced
that we have no power whatever to introduce into this Constitu-
tion the provision of this amendment. There has been what pos-
sibly might be termed two lines of argument offered here. One
is upon the power or this body to enact this amendment and the
other has been upon the policy of such legislation. Have we the
power? Now it is idle to undertake to argue for a moment before
a logical mind that we have the power because as one gentleman
stated today, that we shall go to work and do it regardless of power.

MR. VAN BUSK.IRK 343

The policy of these arguments much of it, arises out of this condition
of things. It is apparently the opinion of the gentleman who ad-
dressed this Convention we have a standing here as a body :n the
same position as the Legislature convened under the provisions of
the Constitution having plenary power excepting so far as the
power is limited by the operation of the Constitution for having
no inhibition under the Constitution which the people of this Ter-
ritory might adopt you might go to work and give a street railroad
or gas works exclusive rights to lay their tracks or their mains and
light the cities with gas. I say that there is inhibition and in the
Constitution the Legislature may under the Constitution have
plenary power and might confer just such privileges upon a cor-
poration. We may just as well meet this question fairly, squarely
as to dodge it. The first Legislature under the organic act this
being a territory, has no legislative powers except what are pro-
vided, none at all. Gentlemen, a few years ago down South they
disregarded the laws of this country ; they got together and legis-
lated common laws. They found they could not do it. They have
not found a solitary thing that the Supreme Court said bei air.e
law and binding. The Constitution and Laws of the United States
control all of us throughout this broad land and as I have said in
the Territory it is the law of the land until such time as Congress
in its infinite wisdom otherwise shall say. If it pass a law author-
izing us to organize a Territory and in its wisdom in the Organic
Act of the Territory confers upon us the powers of the Legislature
to that extent which they may say this Enabling Act does very
well. I say the powers of the Legislature of the Territories is pro-
vided and has to be derived from the terms of the Organic Ai t
precisely as the powers of the government of the United States
is limited and defined by the Constitution of the United S
You will readily see in a moment that we have no plenary power,
nor the State Legislature would not. That is derivitive and when
gentlemen insist here that we may reach out on our powers that is
conferred upon us by act of Congress for the purpose of legislation
and have provided for an election, this is a great misconception
of the theory and history of purposes of our government. There
is necessity for it you will see in a moment. Now then, where are
we? We must go to this same very identical Organic Act, bei ause
our powers arc derivitive and we must find our powers we derive

344 SOUTH DAKOTA DEBATES, 1889

by that act. We must look to this Omnibus Bill and its terms
and provisions for the puspose of ascertaining what power we
derive to transact business here in this Convention. Strictly and
legally since we could not without we derived the power from the
act of Congress conferring it upon us. Now, if the only question
perceived in this is that of authority of the Convention by virtue
of the act of Congress then they have the right to confer upon us
just such limitations as they please and we are bound by them.
Gentlemen, the intent generally is to a logical idea of what might be
said in the argument by some other gentleman on the floor, to tear
that down and therefore to disprove the assertion which they may
make. I may attack argument which counsel in court might make
and demonstrate the falsity of that. It does not demonstrate the
correctness of the position I occupy before the court or public. It
is clear that the whole line of argument here, and while I desire to
accept the other theory, I cannot stand here with my knowledge
which has been the accumulation of most a life-time and which is
largely derived from forming legal "deductions from evidence for a
measure which I know cannot be sustained at all. Congress used
that language understand ingly, they used it in this light. that it
fell however within the authority of the Legislature to provide the
amendment to be submitted to the vote of the people. Now, when
they do that they go to work by requisition of the act and provide
the formal ballot which shall be voted whether the people were to
accept the amendment to the Constitution or not. Congress says
we may fix the regulation in relation to it. We go to work and say
a man might vote one way and then fix the form of his ballot and
say if he votes the other way that is the form of his ballot and that
he cannot cast it only one way and when Congress used that form
with reference to the adoption of this Constitution, Congress meant
by that simply this, that we might do as has been done by legis-
lative bodies in other instances ; so that when a man went to vote
it should be intelligently voted and as the voter intended it to do.
Otherwise there are gentlemen who might put in a vote for another
man, — a different person than he intended to. With a different
form of vote he actually would not be able to determine what those
votes were. Now, if they had designed that we, here in this body,
might provide regulations for that election, they would not have
said we could provide regulations in reference to the Constitution,

EDGERTOX AND CLOUGH DEBATE 345

but they would have said more had they intended more. They
would have said that we might provide rules and regulations gov-
erning the election for the Constitution and State officers. They
would not have stopped short of it. They would have said, you
may vote upon this Constitution, you may at that time elect State
officers and you may provide the necessary rules and regulations
for that purpose, — for the purpose of controlling that election; why
did they stop and say that we might provide regulations upon the
question of the adoption of the Constitution ; why did not they go
further if they meant more. That is the difficulty in this whole
thing. I wish it was otherwise, and if the time ever comes when I
can go to the polls and help elect a man that will go to the Legis-
lature and provide a measure giving us just the system desired in
this amendment and which I have desired for years before it was
adopted in this Territory, I will support that- man gladly and if L
can aid in preparing such a bill and carrying it through he can have
my services.

Mr. Edgerton (of Davison): I understood that first gentleman
from Codington to say this ; that the Constitution provides that we
should have three times the number of members that we have
Senators and that every senatorial district should have three mem-
bers and that we had violated the provision of the Enabling Act.
I would like the first gentleman from Codington to call my attention
to the section he has violated.

Mr. Clough: I have read that several times. Three times
forty-five isn't it?

Mr. Edgerton: I belong to that hateful class — lawyers; but
they are trained to speak in business like this with some degree of
accuracy. "The number of members of the House of Representa-
tives shall not be'less than seventy-five nor more than one hundred
and thirty-five. The number of members .of the Senate shall not
be less than twenty-five nor more than forty-five." "The sessions
of this Legislature shall be bi-ennial except as otherwise provided
in this Constitution."

Mr. Clough: There is another paragraph there.

Mr. Edgreton: That provides for that minority representa-
tion. I apprehend that the intelligence of the people next fall will
say that it will never be a part of the Constitution.

Mr. Willis: Mr. President,—

346 SOUTH DAKOTA DEBATES, 1889

The Chairman: The gentleman from Davison has the flcor.

Mr. Willis: I rise to a point of order. Have not we a rule? I
am sure we have against a showing of approval or disapproval upon
this floor.

The Chairman: I guess there is something like that.

Mr. Edgerton: I felt a little sensitive as a member of this
Convention when it was charged that we had plainly violated this
Constitution that we have met here to frame, — or perfect rather.
I knew it was my intention as declared on the first day of this Con-
vention that we should not go beyond the Organic Act 'that limited
the powers of this Convention. When it was declared here that
we had plainly violated it I felt as if I would like to have the at-
tention called to the section that we had violated. I admit this.
The plain intention of the Constitution is that the number of mem-
bers shall be three times the number of Senators; but I had yet to
learn the fact there was any provision in the Constitution that
there are senatorial districts that shall contain three members.
There is no such provision that my attention has ever been called
to; there is a provision that if the people of this State next fall
adopt the Minority Representation and it becomes a part of the
Constitution then thereafter there are districts that must be so
formed. But I have no fear that that Minority Representation
would be adopted. It at least, forms no part of the Constitution
today.

Mr. Clough: My attention was called to that several times.
I thought I was right, correct; and I think I tm.

Mr. Huntley: As I listened to the learned Judge who spoke
so feelingly upon this subject, interpreting the meaning of Congress,
I thought he should have come from school of prophets instead of
the legal profession. I do not understand how he may stand on
this floor and interpret to us the meaning of Congress of the language
which every one has perused the same as he has himself, unless it
is through some authority like that of the prophets to which I be-
lieve he makes no claims. •

I did not at first read those words of Congress in this Bill.
It seems just as plain to me," very differently from what, from his
interpretation of it, it seems to him. It looks to me clearly that we
have the power to make regulations and rules, to pass ordinances,
and what does ordinances mean but law, enactments, decrees, —

IlrxTLEY vs. EDGERTON 347

and if we come here together under the express authority of Con-
gress to make decrees, what is that but that we have the power to
make regulations to carry out all those acts of which we approve
and which we here decree, and if we are empowered to make rules
and regulations for the vote on the Constitution and its separate
articles and if that same bill provides that this Convention may, it
does not say that it shall but that it may, provide by ordinance for
the election of State officers ; what does it mean but that we may
provide by regulations and rules how these said officers shall be
elected. It is a mystery to me how these legal gentlemen differ
from one another. We do not intend , and do not cast any
reflection upon them. I believe the best talent among them have
taken sides with those who think we have the full authority ; there-
fore we preachers are not assuming anything when we boast of the
legal talent on the floor. We think that we intend to urge and do
urge upon this body that they put this ordinance in that Schedule.
\\Y have the power and I do not see how any question can arise upon
it. Why, Sirs, the Committee in the Schedule have done it; they
presume to do that very thing. They have the power to present it
and recommend to us and they do it and recommend it. They
present and recommend that we take the laws of the Territory and
apply them to the election of State officers. Is there anything in
the Omnibus Bill that directs that just those shall be slighted in MK h
rules and regulations:' Where do they find that? Will the gentle-
man please read the section in which it was found. They insist
upon that being in there according to authority; very well. Hav-
ing that authority they have the same authority for incorporating
the same amendment which we bring; the same precisely. If they
have the same authority for one they have the authority for the
other and we insist that this is, as presented, is the belief of this
body and is their will in regard to this matter. Those who are
favoring this were taken rather aback this afternoon by the fears
instilled by the legal friends who first opened this discussion. I
think surely he ought to have come from the school of prophets, pro-
nounced the cause which we have here insisted upon as a great
crime, we propose to deprive somebody of his right to vote, to rejert
him if he goes to vote that ballot and don't in the f.>nn we preseribi- :
take away from him the dearest right of the American citizen. I

348 SOUTH DAKOTA DEBATES, 1889

could not but admire the facility with which he pictured his fancies
and imaginings.

In this amendment this Convention desires to protect and
secure to the voter his rights, and the passing of such an ordinance
would most effectually compass that end. What would be the
effect if a man steps up and presents his ballot and refuses to vote in
accordance with the rules prescribed? I will tell you what I wrould
say: "Mr. Voter, if you don't want to vote in accordance with the
regulations, you dor\'t have to. There is no law compelling a man
to vote." What would you do with a wild man who refuses to
carry out this ordinance? You would tell him, "You don't have
to vote". Any dunce that would refuse to carry out any ordinance
that was here prescribed. Suppose Sioux Falls should have two
Senators, six or seven Representatives, and suppose, at the election
this fall, they elect five Senators and fifteen or twenty Representa-
tives, what would you do about it ? Well , Sir, I presume they would
find some way to legally do it. Whatever way that is, this is the
way I should put it. If Sioux Falls did not comply with the ordi-
nance we had in regard to elections they could pronounce our action
in the one case illegal and void and it might be pronounced void if
they violated this ordinance if we pass it. I believe we have the
authority to pass it; I cannot see it otherwise.

I notice this peculiar fact: Nearly every speaker who has
opposed this measure, nearly every one of them has said it was
desirable that we have such protection thrown around the ballot
box; every one wanted it. Our Legislature wanted it last winter
and they passed a resolution like it ; it came into the hands of the
Clerk and everybody wanted it ; somebody wanted it so badly they
got it away from the Clerk and it never got around anywhere else.
Well, my friends, we want this just the same as if it had been seen
and shall we, because some of these lawyers, who is less discreet
and less talented, oppose some of those ? Other lawyers, who under-
stand the case better and are intent on doing the right thing shall
those of us who are not lawyers sit in with the opposers of this
measure, or shall we take part with those who want the ballot pro-
tected? I tell you let us pass this ordinance and if Sioux Falls, or
Huron or any other town, whether they want the capital or not, do
not obey that ordinance I tell you there will be a way provided

MINORITY REPRESENTATION 349

whereby they will suffer and they will wish they had obeyed the
ordinance.

My friends, my memory goes back to a. point four years ago
when the Territory of Dakota elected a legal Constitutional Con-
vention. That county that the honored President now represents,
said it would not amount to anything ; they did not need any dele-
gate. They were not represented here. Well, they could not be
compelled to be so what happened? They did not come here ; they
stayed at home and had no part in it ; they never had a vote in pass-
ing this ordinance. That is what happened to them if they do not
care enough for this part of the Schedule and Ordinance that we
pass, should we adopt the amendment, loyally stand by its pro-
visions, then they will be left out of the election, that is all. Let
us do our duty, for it is right, and God is for the right. Let us not
be ashamed.

I tell you that these lawyers that have been so full of fire
against this measure will see to it that their votes are not lost when
they have to. Some gentleman in the lobby, after the afternoon
session, gentlemen of this town, men of ability, of reputation as
lawyers ; men interested here in the work and especially interested
in their solicitude on the capital question, said to me they were both
in favor of this measure, very much in favor of it. One of them
was so much in favor of it he told me he was really a crank on this
subject. Indeed there are here cranks here that turn the wrong
way ; some left handed cranks. These left-handed cranks that are
now endeavoring to turn the machine backwards. We want to
go ahead, no matter whether we are cranks or not, gentlemen. Let
us do our duty faithfully and the end will justify us.

Mr. Cooper: I do not think there are many gentlemen on this
floor this evening but would, if asked the question, declare he was
in favor of a law of this kind if we have the power to enact it, and
for the reason the public interests demand it, because of the nature
of things in this Territory and in every State and Territory in this
Union. We have been led to believe that there were dishonest
men; that there are corrupt men; that there were men who would
disregard the election laws of the coming State, and disregard the
election laws of every State and Territory in the Union; that they
were dishonest; that thev were corruptionists; that they were
sluggers and certainly that thev were thugs. That was the reason

350 SOUTH DAKOTA DEBATES, 1889

why I think every gentleman and every individual who has spoken
upon this question has declared that if he had the right to enact this
law and regulation of that kind that it would be wise, and just and
politic thing to do. I believe that every gentleman upon this floor
is in favor of protection of the ballot; is in favor of a true, pure,
honest ballot and fair count. But we have acquiredthe information
from the learned gentleman from Codington County, that none of
the reasons which have been urged in opposition to the reputation
of this kind, so we have learned from the learned gentleman but
that were an insult upon the manhood and womanhood of this
commonwealth ; that there is nowhere in all this bright land of ours
anything which savors of purity, anything that savors of honesty,
and in the meanest language that he could employ. He not only
assaulted and impugned the motives of every gentleman who spoke
against this amendment, but even undertook to make an assault
upon me. I say that if the position that he has taken is true, that
nothing of the nature of purity and honesty exists among the people
of this great State. He has proved beyond recall, beyond possibility
to his own satisfaction I presume, certainly to the satisfaction of
every gentleman upon this floor, that this amendment is an insult
upon the manhood and womanhood of South Dakota. I say that if
any gentleman believes that the position that he has taken is the
only correct position for that gentleman upon this floor to take.
But I believe that in the people of South Dakota and no gentleman
believes more firmly than I do that nowhere upon God's green earth
are the people more honest, conscientious, more pure in his manhood ;
and no people higher in this integrity than these are. I say I be-
lieve there are dishonest men in this State ; I say I believe there are
corrupt men in this State ; that there is what is known as thugs in
this State I believe that this is the reason why, Mr. President, and
gentlemen of this Convention, that an ordinance of this kind, a regu-
lation of this kind, a law of this kind, should be passed, but there
is a question back of it. First, have we the right to pass it? I do
not always believe in the sentiment expressed by one gentleman
upon this floor; I do not think he will when he stops to analyze
it ; I do not believe the end always justifies the means ; I do not
believe that beyond question one wrong thing in order to prevent
another wrong thing from being done, can always be employed so
the end justifies the means.

MR. COOPER'S VIEWS 351

\ow, as to the matter of disagreement between the lawyers
among the members of this body, I say there is not a lawyer who
has spoken upon this subject this afternoon or evening that has
denied a single gentleman who has spoken upon it. I say there is
no difference of opinion between the legal gentlemen who have
spoken upon this proposition ; they all agree that no judge of election
would have the right to refuse a ballot provided by the laws of the
Territory of Dakota, a ballot which would be legal under the laws
of the Territory of Dakota. No judge of e ection would have the
right to refuse; if he did, by the laws of this Territory, he is guilty
of a crime. No gentleman who has spoken upon this question
today has admitted or claimed that in his opinion a ballot which
would be legal under the laws of this Territory but which would
not comply with the laws of this amendment, would be an illegal
ballot ; would invalidate the election.

But they say, the gentlemen upon the other side, that we are
in a condition of anarchy without the laws of this Territory. They
need the law to protect them, because they say you cannot repeal the
laws or banish the laws. The moment you do that you make it
an illegal vote. I say that I do not believe that I can conscientiously
vote for a thing of that kind. I believe in the law. That under
the laws that a man that casts an illegal vote is guilty of a crime,
and a judge of election who refuses to accept a legal ballot is guilty
of a crime. A gentleman here today argues this question saying.
"No judge or no jury". I cannot quote his language — "I do not
believe any judge of election could be convicted for refusing to
accept the ballot." I would not say that is correctly quoted, but
I believe that is the substance of it. I have more faith in the hon-
esty of the judges and juries of this great Territory than to say that
they will deliberately break the laws of this coming State. I be-
lieve that if the law made a certain man guilty of a crime and the
man that performed that act was placed on trial and it was plainly
proven that he violated the laws of this Territory I believe that
the honest manhood of Dakota would say that he should be pun-
ished. I say I do not believe because we are passing from Ter-
ritorial condition to statehood, — I do not believe that we are in a
condition of anarchy; I do not believe that we are absolutely with-
out protection because the Enabling Act provides the laws now in
existence shall stand and that they shall have full force and effect

352 SOUTH DAKOTA DEBATES, 1889

until superceded by future amendments by the Legislature. I
would vote for an amendment of this kind if I thought we had the
right to do it ; for that reason I shall cast my vote in the negative.
I will say again I do not believe that all men in this Territory are
so pure and undefiled and have kept themselves so unspotted from
the world that they do not need any laws. I do not believe that.

Mr. Clough: I rise to a question of privilege. There is no
man that would rather be laughed at than I would if I make a mis-
take I am willing to acknowledge it. My eyes are not very sharp.
I have looked at this Constitution, have read it a score of times and
have talked about this rule seriously. I acknowledge that I never
discovered that it was for the adoption of the Minority Report.
I presume twenty have discussed. I acknowledge my mistake and
I am glad to be enlightened. I confess that I made a mis-statement,
when upon the floor before and sincerely beg the pardon of the
President of this Convention.

The Chairman: The Chair recommends to this Convention
to endorse the sentiments that "honest confession is good for the
soul." (Laughter.)

Mr. Dickinson: I want, upon the heel of the remark of the
gentleman from Codington I like to get square arguments, I want,
wrhile he is upon the subject of Territorial law to call his attention to
this article which we are considering, Article 7 of the Schedule
submitted here. The section reads as follows: Section 7. The
election provided for herein shall be under the provisions of the
Constitution herewith submitted, and shall be conducted, in all
respects, as elections are conducted under the general laws of the
Territory of Dakota, except as herein provided. No mere tech-
nicalities or informalities, in the manner or form or election, or
neglect of any officer to perform his duty with regard thereto,
shall be deemed to vitiate or void the same, it being the true intent
and object of this ordinance to ascertain and give effect to the true
will of the people of the State of South Dakota, as expressed by
their votes at the polls. I want to ask that the gentleman think
upon that exception and the meaning of it. The Schedule Com-
mittee voted down this amendment in their meeting, they have
taken occasion to say. I grant they might call attention to it
simply to remove any doubts about why that being so, we have no
right to anything except as herein provided. These articles will

PREACHERS AND LAWYERS 353

be submitted but the same will be because the Territorial laws
shall prevail in this election. We make the same provision ex-
actly. I know there are minor exceptions here, they are small I
grant, but that right which they hold to do here with small provisions
paves the way for larger changes which are clear violations of the
spirit of the Enabling Act.

Mr. Stroupe: I would like to speak to a question of privilege
also, because I do not intend to speak very much of the report
inasmuch as the Chair has allowed so many gentlemen to speak
upon the question so often, I will speak for a moment.

This seems to have been a field day between the preachers
and lawyers. I confess, although I am not one of the lawyers, the
lawyers have the best of it. I came here in doubt this afternoon ; I
I thought that the lawyers could make it clear to my mind as one of
the fifty jurymen that we had a perfect right to ingraft this amend-
ment into the Schedule, that I should vote for it because my friend
from Codington says I am in favor and in sympathy with the spirit
of this amendment. I want to say that I am ready to place myself
upon record that I am in favor of Prohibition. No man worked in
'85 harder than I did for it one year ago last fall for local option.
I do not except any man. I do not expect any man will work
any harder for it till next first day of October than Ir be he
preacher or sinner. I say that if there is a person here who will
make an argument, not an enthusiastic talk, that is not very
much of a legal argument, let us hear him. . There are those
who can talk in public of course, we can't blame them for it;
they have been trained to it; they have been trained to preach,
talk fire in their pulpits where no man dare, if he had a chance,
to say anything against it. I want to begin with the first gen-
tleman that spoke here to-night and say briefly, while his speech
will do very well as a plea for prohibition it would not satisfy me
very well as an argument on this proposition; the next gentle-
man from Day I admire. I want him to come into our county
before October; I want him to come into our town and talk
prohibition. Also the minister from Codington, I would like
to have him come in there, but before he comes I would want him
to get his speech committed in pretty good order so he won't make
any bad breaks. I think Day and Beadle counties have to take it
right and left; I think it is unjust. Mr. Cooper, I think, made one

354 SOUTH DAKOTA DEBATES, 1889

of the best arguments that was made upon the floor this after-
noon and of anyone tonight. I know I do not intend for one
minute to be discourteous to anyone or reflect upon the motives
of anyone as one or two speakers have passed, which he chooses
to say reflect on.

I am certain that these gentlemen upon reflection will take it
all back and might publish it even. This is a question of privilege.
Gentlemen, I will stay here until morning if you want to talk ; but
my dear preachers if you do talk upon this question whether this
amendment will be legal, whether we have the right to pass it and
' not that we would like to have it there. I don't believe that there
is a man here but what would like to see it a law, but if the lawyers
say that it cannot be legally passed, then let us do the next best
thing; be on the safe side and vote according to the Territorial
laws. This is my plea.

Mr. Willis: I am a lawyer, —

The Chairman: How do you spell that word? (Laughter).

Mr. Willis: I have had a course of law since I have been
here. I might beg to insinuate a suggestion now that the last
speaker did not stick to his text. I rise to defend nobody and observe
to remark anything about anybody. I am going to studiously
aviod any personal suggestions. I mean to say nothing contra y
if I thought of it. I have done talking mere cold mysteries; it
would confuse this Convention while confusion is now confounded.
It now appears to me to begin to seem that certain lawyers of this
body of long experience are very clear or rather quite clear or con-
siderable clear, — that is about this question of power we have not
got. But there are certain other lawyers of experience so far as
I know I have only to make up my mind from observation I have
had no experience with this, who, upon this question of power,
decides that we have the power.

Two hours ago a man whom I judge to be one of the prominent
lawyers of this city who is now in the lobby, in relation to, this mat-
ter made this remark that is about the question of this Convention
having the authority under the Omnibus Bill to prescribe the con-
ditions of the ballot next October, even to